Procuring Premises (Art. 187 CP): Profiting From Prostitution

Procuring premises (tercería locativa) is the classic term for a form of profit-driven pandering: allocating a property, premises or establishment to favouring the exploitation of another's prostitution, with intent to profit. It is not an autonomous offence and there is no "Article 187 bis": where profit and exploitation concur, the conduct is punished through Article 187.1, second paragraph, of the Spanish Criminal Code (current wording given by Organic Law 1/2015). The line between simple lease (lawful) and procuring premises (an offence) is one of the most debated points of modern sexual criminal law. As criminal defence lawyers, we analyse the offence and the viable defences.

The Offence: Art. 187.1, Second Paragraph CP

Article 187.1 CP, in its second paragraph, punishes "anyone who profits from the exploitation of another person's prostitution, even with that person's consent" with prison of 2 to 4 years and a fine of 12 to 24 months. Procuring premises falls within this offence where the landlord profits from the exploitation of the prostitution exercised at the property. The closure of the establishment or premises may be added under Article 194 CP (definitive closure, reinforced by LO 10/2022 where establishments or premises are used to commit the offence). The consent of the person exercising prostitution is irrelevant where the element of exploitation concurs, which is deemed to exist where either (a) the victim is in a situation of personal or economic vulnerability, or (b) onerous, disproportionate or abusive conditions are imposed for its exercise.

Constituent Elements of Procuring Premises

1. Availability of a property. Whether owned or leased.
2. Real allocation to the exercise of prostitution. Proof that the property was actually used.
3. Disproportionate economic profit. Case law compares the rent charged with the market price.
4. Knowledge of the landlord. Direct or eventual intent.

Difference From Human Trafficking (Art. 177 bis CP)

The line with human trafficking for sexual exploitation is critical because the penalties soar: 5 to 8 years in the basic type of trafficking, against the 2 to 4 years of procuring premises. The essential difference is the initial coercive recruitment. In trafficking there is a "recruitment phase" through violence, intimidation, deceit or abuse. In procuring premises the victim already exercises and the exploiter intervenes by taking advantage, not by recruiting.

Criminal Defence of the Investigated Landlord

1. Absence of knowledge (invincible error of fact). Proving the landlord did not know and could not reasonably know the use of the property.
2. Market price. A real-estate expert report comparing the rent charged with equivalent properties.
3. Prostitution on own account. Proving the persons exercised without economic or labour dependence on the landlord.
4. Immediate cessation after warning. If the landlord, on suspicion, sought termination of the contract.
5. Nullity of evidence. Challenging searches without a court order.

Penalties and Ancillary Consequences

• Closure of the establishment or premises used (Art. 194 CP), decreed on a definitive basis after LO 10/2022 and available as a precautionary measure.
• Confiscation of the instruments and proceeds of the offence (Art. 127 CP), which may reach the property where it is shown to have been an instrument of the exploitation, subject to protection for bona fide third parties.
• Civil liability (Art. 116 CP) for the harm caused to the victims where exploitation is proven.