Criminal Defense Lawyers in Illegal Occupation (Okupas)

The offences of usurpation, governed by Articles 245 to 247 of the Criminal Code, punish the occupation of another's immovable property without the owner's authorisation, as well as the alteration of boundaries and the diversion of watercourses. They are one of the most topical groups of offences, especially in the form of the peaceful occupation of property, and they call for a technical defense that distinguishes precisely between the different applicable types and their procedural regimes.

Legal Framework: Arts. 245-247 CP

Chapter V of the Criminal Code governs the offences of usurpation. Article 245.1 CP punishes with imprisonment of 1 to 2 years whoever, with violence or intimidation against persons, occupies immovable property or usurps a real right over property belonging to another. Article 245.2 CP punishes with a fine of 3 to 6 months whoever occupies, without due authorisation, immovable property, a dwelling or a building belonging to another that does not constitute a dwelling, or remains in it against the owner's will. Article 246 CP punishes the alteration of boundaries and Article 247 CP the diversion of watercourses.

Trespassing vs Usurpation (Art. 202 CP)

A technically essential distinction is the boundary between the offence of usurpation (Art. 245 CP) and trespass to dwelling (Art. 202 CP). Trespass protects the inviolability of the home (Art. 18.2 of the Constitution) and applies where the occupied property constitutes a dwelling of a natural person (an inhabited home, a second residence in effective use). Usurpation applies where the property does not constitute a dwelling (premises, warehouses, unoccupied buildings, uninhabited homes). The penalties differ substantially: trespass can reach imprisonment of 6 months to 2 years (up to 4 years with aggravating factors), whereas peaceful usurpation is a mere fine.

The Legal Concept of Dwelling

Case law has consolidated a broad concept of "dwelling" that includes not only the permanent home but also the second residence in effective use and any space where a person carries out aspects of their private life. The defense must carefully analyse whether the occupied property was a dwelling at the time of the events, whether there was effective and current use, and whether there were personal belongings and signs of habitability. The classification as usurpation or trespass can radically transform the criminal response.

Peaceful Occupation and Eviction

The form in Article 245.2 CP (peaceful occupation) has gained particular relevance for its social recurrence. Its procedural handling frequently follows the route of the minor offence (fast-track trial), with the resulting speed. The question of eviction falls, strictly, outside the criminal sphere: precautionary eviction measures are usually channelled through the civil route (Law 5/2018 on the illegal occupation of homes) or, in limited cases, through the criminal route where urgent restitution is viable. For owners, as private prosecution we can request the criminal judge for the precautionary eviction measure from the admission of the complaint (Prosecutor's Instruction 1/2020), establishing ownership and harm to recover possession in weeks rather than years.

Specific Defenses

The most relevant lines of defense include: the existence of a title or legal cover justifying the occupation (a verbal lease, the real owner's authorisation, a situation of tolerance); a dispute over ownership of the property; mistake as to the property belonging to another (a reasonable belief of having a right); a state of necessity in extreme cases (Art. 20.5 CP); a dispute over the concept of dwelling in borderline cases; and a dispute over effective occupation (mere occasional presence versus occupation with a vocation of permanence).

Defense Strategy

We build the defense around: a rigorous analysis of the classification between trespass and usurpation; documentary evidence of any possible title; a dispute over the concept of dwelling; an analysis of the subjective element and possible excluding mistakes; the assessment of mitigating factors (reparation, undue delay, partial state of necessity); coordination with parallel civil eviction proceedings; and the negotiation of plea agreements where the facts are indefensible. We act before the Investigating Courts, the Criminal Courts, the Courts of First Instance and the Provincial Courts.

Criminal Procedure Stages and Competent Court

Squatting offences are generally processed through the abbreviated procedure, since the maximum penalty (one to two years' imprisonment for the violent or intimidatory offence under Art. 245.1 CP) falls well below the nine-year threshold. Jurisdiction lies with the Criminal Court (Juzgado de lo Penal) of the district where the property is located; the National Court (Audiencia Nacional) is never competent in these matters. In the peaceful form under Art. 245.2 CP, punished only with a three to six month fine, the case is likewise heard before the Criminal Court once the investigation phase before the Investigating Court is concluded.

The typical path begins with the owner's complaint or formal accusation, the opening of preliminary proceedings, the questioning of the accused and the gathering of evidence on the occupation. Early intervention is essential: the initial classification as Art. 245.1 versus Art. 245.2 shapes the entire strategy, because the absence of violence or intimidation against persons, or of force against property, downgrades the conduct to the fine-only offence. The defence must ensure that the force used to enter is not confused with the violence required by the aggravated subtype, a frequent error in early classifications.

Limitation Period under Article 131 CP

The limitation periods for squatting are calculated under Art. 131 CP according to the maximum penalty assigned to each offence. The peaceful occupation under Art. 245.2 CP, punished solely with a three to six month fine, is a less serious offence and is time-barred after five years. The same five-year period applies to the violent or intimidatory occupation under Art. 245.1 CP, whose maximum two-year prison term does not exceed the five-year threshold. The identical rule governs the alteration of boundaries under Art. 246 CP and the diversion of water under Art. 247 CP.

Only cases that, owing to their minor value, qualified as a petty offence would fall to a one-year limitation period, a residual scenario in this field. There is no intermediate three-year bracket: the offence is either time-barred after five years as a less serious offence, or after one year if petty. Time runs from the day the conduct is completed; it should be recalled that squatting is a continuing offence, so the period only begins when the unlawful occupation ceases, which meaningfully delays the dies a quo.

Restitution of the Property and Civil Liability

A conviction for squatting carries, as the civil component of the judgment, the obligation to return the property to its lawful possessor and to make good the damage caused during the occupation. Civil liability covers the material deterioration of the property, the cost of consumed utilities and, where applicable, the use value of the property during the period the owner was deprived of it. Quantifying these items requires evidentiary support: invoices, expert appraisal reports of the damage, and documentary proof of ownership or of the possessory right.

Where the use value or loss of profit is claimed, the valuation proposed by the prosecution should be critically examined, since a generic estimate of market rent without expert basis is not sufficient. The defence may dispute the reality and extent of the alleged damage, separating pre-existing harm from that actually caused by the occupation. In the Art. 245.1 form, moreover, the prison term itself (one to two years) is set in light of the benefit obtained and the damage caused, which makes determining that gain a primary technical point of defence.

Plea Agreement, Mitigation for Reparation and Suspension of Sentence

Because the penalties attached to squatting fall within a moderate range, repairing the harm before trial has a significant procedural effect. The voluntary return of the property and compensation for the damage can support the mitigating circumstance of reparation under Art. 21.5 CP, which reduces the criminal response and, when it applies as highly qualified, allows the penalty to be lowered substantially. This route is particularly relevant under Art. 245.1, where vacating the property and disgorging the benefit obtained strengthen the defence's position.

A plea agreement is another tool to weigh where the prosecution evidence is strong: negotiating an adjusted classification and a reduced penalty may be preferable to an uncertain trial, especially when combined with the mitigation for reparation. As for the custodial penalty under Art. 245.1, since it does not exceed two years it is in principle eligible for suspension under Arts. 80 et seq. CP for a first-time offender, which avoids actual imprisonment. The peaceful form under Art. 245.2, punished only with a fine, raises no imprisonment issue but does raise the possibility of subsidiary personal liability in the event of non-payment.