Usurpation in Spain (arts. 245-247 CP): violent occupation, boundaries and water

Usurpation is the group of property offences that protects possession of real property and certain real rights against anyone who takes them over without title. It is set out in articles 245 to 247 of the Spanish Criminal Code (CP) and covers very different conduct: from occupying a property by force to moving the marker that separates two plots or diverting water from a watercourse. As criminal-defence lawyers handling usurpation offences, we explain what each provision punishes, the penalties involved and how the defence is built, with particular attention to the lesser-known variants: the violent occupation of 245.1, the alteration of boundaries of 246 and the diversion of water of 247.

Before turning to each figure, it is worth placing the best-known one. The peaceful occupation of someone else's property that is not a home — so-called squatting — is the variant of article 245.2 CP, and it has its own procedural problems (fast-track trial, interim eviction, defence strategies). We devote a dedicated guide to it and refer to it here so as not to repeat its content: illegal occupation of property. This article focuses on the other forms of usurpation.

What the offence of usurpation protects

Usurpation protects the possession of real property and the peaceful exercise of certain real rights. Unlike theft or robbery, which concern movable goods, usurpation bears on the immovable: estates, buildings, land, boundaries and uses such as water. The legally protected interest is not only ownership in the abstract, but the effective enjoyment of the property or right by the person entitled to it.

This explains a constant throughout the whole subject: the right of possession is the axis of the classification. A person who occupies or uses property under a title that entitles them to do so — ownership, contract, administrative authorisation, the owner's consent — does not commit usurpation, however much there may be a dispute over the scope of that title. In such a case the controversy is civil, not criminal.

Article 245.1 CP: violent occupation and usurpation of a real right

Article 245.1 CP punishes anyone who, using violence or intimidation against persons, occupies real property or usurps a real right over real property belonging to another. The penalty is one to two years' imprisonment, set according to the benefit obtained and the harm caused, and imposed in addition to any penalties incurred for the violence used (bodily harm, coercion, threats, as the case may be).

Two elements distinguish this offence from the rest:

• The violence or intimidation is directed at persons, not at things. Forcing a lock, on its own, does not turn the occupation into the 245.1 offence; what aggravates it is the use of physical force or threats against someone in order to occupy or to remain.
• The object can be a real right over real property, not just the land. Forcibly taking over a right of way, a usufruct or another person's right of use also falls within the provision. A mere dispute over who is right about the title is not enough: the offence requires that the taking be imposed through violence or intimidation.

Because of the penalty involved — imprisonment, as against the mere fine for peaceful occupation — the correct classification of the facts is decisive. The line between 245.1 and 245.2 turns precisely on whether or not there was violence or intimidation against persons.

Article 245.2 CP (squatting): cross-reference

Article 245.2 CP punishes occupying, without due authorisation, someone else's property, dwelling or building that does not constitute a home, or remaining in it against the owner's will, with a fine of three to six months. This is the conduct known as squatting and the most frequent variant in practice.

Given its social relevance and its procedural treatment — fast-track processing following the reform introduced by Organic Law 1/2025, the possibility of interim eviction, defences such as state of necessity — we devote a separate guide to it. To avoid duplication, we refer to it: illegal occupation: owner's rights and criminal defence. That guide also distinguishes squatting from violent usurpation, from breaking and entering a dwelling (art. 202 CP) and from the misnamed "tenant squatting", which is not a crime but a civil eviction.

Article 246 CP: altering boundaries and markers

Article 246 CP punishes anyone who alters the boundaries of towns or estates, or any kind of signs or markers intended to fix the limits of properties or the demarcation of adjoining plots, whether publicly or privately owned. The penalty is a fine of three to eighteen months. If the benefit obtained does not exceed 400 euros, the fine is reduced to one to three months.

It is a typical offence in rural neighbour disputes: moving a boundary marker, ploughing beyond the boundary to gain surface area, removing the milestones that delimit two plots. The key to the offence is the intent to take over another's land by altering the markers; not every disagreement about where the boundary lies is a crime. Where what exists is a simple dispute about the area or the dividing line, without deliberate manipulation of the markers to appropriate what belongs to another, the appropriate route is civil demarcation and boundary-setting, not criminal proceedings.

Article 247 CP: diversion of water

Article 247 CP punishes anyone who, without authorisation, diverts water of public or private use from its course, or from its natural or artificial reservoir. The penalty is a fine of three to six months and, if the benefit obtained does not exceed 400 euros, of one to three months.

It protects the legitimate use of water against anyone who diverts it for themselves without a concession or authorisation. The essential elements are the lack of authorisation and the actual diversion of the resource from its course or reservoir. It is a frequent figure in disputes over irrigation, water capture and use in farming areas, where it often overlaps with administrative water law; hence drawing the line between a mere administrative breach and the offence requires a careful examination of the title and of the specific use.

Summary of penalties (arts. 245-247 CP)

Lines of defence against a usurpation charge

Each variant calls for its own strategy, but there are lines of defence common to the whole group:

• Right of possession. This is the central defence. A person who occupies, sets boundaries or uses property under an enabling title — ownership, contract, administrative authorisation, the owner's consent — does not commit usurpation. Establishing the title in good time can shift the dispute to the civil courts and lead to the criminal case being dismissed.
• Absence of violence or intimidation. In article 245.1 CP this is decisive: if there was no force or threats against persons, the facts do not fit the aggravated, imprisonable offence, but, where applicable, the peaceful occupation of 245.2 (a fine) or fall outside criminal law altogether.
• Mistake. Mistake as to ownership of the right, as to the actual limits of the land (under 246) or as to authorisation for the use of the water (under 247) may exclude or mitigate intent, where the conduct stems from a reasonable belief and not from a will to take what belongs to another.
• Distinction from the civil or administrative route. Many disputes over boundaries, areas or water use are, in reality, civil matters (demarcation and boundary-setting) or administrative ones (water law), not crimes. Showing that the intent to take over another's property is absent is key to avoiding a criminal classification.

The settled case law of the Supreme Court requires, in these figures, a careful distinction between a legitimate property dispute and criminal conduct, which leaves real room for the defence when the case is worked on from the outset of the proceedings.