Trespass Defense Lawyers

The crime of trespass is regulated in Article 202 of the Criminal Code and protects one of the most important fundamental rights: the inviolability of the home (Art. 18.2 CE). This crime punishes anyone who "enters another's dwelling or remains in it against the will of its occupant".

Unlike usurpation (which protects property), trespass protects domestic privacy. It doesn't matter if you are the owner, tenant, or occupant: if you inhabit a place stably, you have the right to decide who enters. At Alonso Sala, we defend both those accused of trespass and victims seeking urgent criminal protection.

Protected Legal Interest: Privacy, Not Property

The Supreme Court has made it clear that trespass protects personal and family privacy, not property rights. Therefore:

• A squatter who lives stably in a house has dwelling protection, even if their occupation is illegal. The owner CANNOT enter by force without a court order.
• A tenant has full protection against the landlord. The landlord cannot enter without permission, even if they are the owner.
• A separated spouse who no longer lives in the common home CANNOT enter without the other's permission, even if they are co-owner.

Aggravated Types: Violence, Intimidation and Night Time

Art. 202.2 CP aggravates the penalty (1 to 4 years in prison) if the trespass is committed:

• With violence or intimidation: Forcing the door, threatening the occupant, or using physical force to enter.
• At night: Between sunset and sunrise, when the victim is most vulnerable.
• With weapons or dangerous objects: Carrying knives, bats, or any instrument that can be used to assault.
• By a public official outside permitted cases: Police or authority entering without a court order or legal cause.

Key Difference: Trespass vs. Usurpation

Many clients confuse these crimes. The difference is clear:

• Trespass (Art. 202 CP): Entering an inhabited place without the occupant's permission. Protects privacy.
• Usurpation (Art. 245 CP): Occupying an empty property or dispossessing the owner of their possession. Protects property.

Example: If a squatter enters your house while you're on vacation and settles in, they commit usurpation. If you, as the owner, then enter by force while the squatter lives there, you commit trespass (because the squatter is now the de facto occupant).

Consent: Key to Defense

The most common defense in trespass cases is to prove that consent existed from the occupant. This consent can be:

• Express: Clear verbal or written permission ("come in", "enter").
• Tacit: Behaviors that imply permission (leaving the door open, prior invitation, relationship of trust).
• Presumed: Emergency situations where it is assumed the occupant would consent (e.g., firefighters entering to put out a fire).

Important: Consent must be free. If obtained by deceit, intimidation, or error, it is NOT valid.

Business Premises Trespass (Art. 203 CP)

Art. 203 CP punishes illegal entry into commercial establishments, professional offices, or offices outside business hours or against the owner's will. The penalty is lower (6 months to 1 year in prison or fine of 6 to 12 months).

Typical cases: Entering a closed office to steal documents, accessing a law firm without permission, or remaining in a commercial premises after closing refusing to leave.

Defense Strategies in Trespass

At Alonso Sala, our defense is based on:

• Proving consent: WhatsApp messages, witnesses, recordings, or prior relationship demonstrating tacit permission.
• Atypicality of place: Proving the place is not a 'dwelling' (e.g., exterior garden, open commercial premises, common area of building).
• Co-ownership: Demonstrating the accused also lives there or has right of access (e.g., spouse still registered).
• Error of type: Lack of intent due to invincible error (e.g., entering drunk thinking it's your house).
• Nullity of evidence: If police entered without a court order and obtained evidence, it may be null (fruit of the poisonous tree).

Criminal Proceedings for Trespass: Stages and Timeframes

Organic Law 1/2025, of 2 January, on the efficiency of the public Justice service, has substantially changed how these cases are handled: trespass to dwelling under Art. 202 CP and usurpation under Art. 245 CP are now expressly included in the list of offences tried under the fast-track procedure (juicio rápido). Article 795 of the Criminal Procedure Act (LECrim) now lists, in points i) and j), the offences of trespass to dwelling under Article 202 CP and usurpation under Article 245 CP, and Circular 1/2025 of the State Prosecutor General's Office sets out how this is applied in practice.

For the fast-track procedure to apply, the general requirements of Art. 795 LECrim must be met: proceedings opened on the basis of a police report, a suspect who has been arrested or summoned to appear before the duty court, and an investigation expected to be straightforward. In practice, most trespass cases — where the offender is caught inside the dwelling or identified immediately — fit this model. The stages are:

• Police report and summons: the police document the facts, identify the suspect and summon them (or bring them, if under arrest) before the duty court.
• Urgent proceedings before the duty court (Art. 797 LECrim): in a single sitting the court obtains the criminal record, takes statements from the suspect and the witnesses who appear, and gathers the essential expert evidence, with the active participation of the Public Prosecutor.
• Decision of the duty judge (Art. 798 LECrim): if the evidence gathered is sufficient, the case continues as a fast-track trial; if the investigation proves more complex, it is converted into ordinary pre-trial proceedings under the abbreviated procedure.
• Trial: the hearing is listed before the Criminal Court within very short timeframes — days or a few weeks, not the months or years of ordinary proceedings.

The same Organic Law 1/2025 thoroughly reformed plea agreements (conformidad): Art. 655 LECrim no longer has a penalty ceiling, the preliminary hearing of Art. 785 LECrim has been generalised, joint indictment briefs are allowed, defence counsel must inform the accused in writing of the consequences of pleading guilty, and the victim must be heard before the agreement is approved. In fast-track proceedings, pleading guilty before the duty court itself may also carry a statutorily provided reduction of the sentence. The strategic consequence is clear: defence decisions must be taken in hours, not months. Appearing before the duty court without a defined strategy can shape the entire outcome of the case.

Accused of Trespass? Suspended Sentences and Criminal Records

The penalty for the basic offence (6 months to 2 years in prison) places trespass within the scope of the suspended sentence regime of Art. 80 CP, which allows custodial sentences not exceeding two years to be suspended where it is reasonable to expect that serving them is not necessary to prevent future offending. The statutory conditions are three:

• First-time offender: convictions for negligent or minor offences are not counted, nor are records that have been expunged (or should have been), nor those irrelevant to assessing the likelihood of future offending.
• The sentence, or the sum of those imposed, must not exceed two years, excluding imprisonment in default of payment of a fine.
• Civil liability must have been satisfied: this requirement is deemed met where the convicted person undertakes to pay in line with their financial capacity and it is reasonable to expect compliance.

The suspension period for these sentences is two to five years (Art. 81 CP), conditional on not reoffending during that time. For aggravated trespass under Art. 202.2 CP (1 to 4 years in prison), suspension remains possible if the sentence actually imposed does not exceed two years: that is why a defence aimed at reclassifying the facts as the basic offence, securing mitigating circumstances or negotiating a controlled plea agreement is so important in practice.

As for the criminal record, a final conviction is entered in the Central Register of Convicted Persons, and its cancellation requires having served the sentence and not reoffending during the periods of Art. 136 CP: two years for sentences not exceeding twelve months, three years for the remaining less serious sentences under three years, and five years for those of three years or more. If the sentence was suspended, once final remission is obtained the period is backdated to the day after the sentence would have been completed without the benefit (Art. 136.2 CP). We approach every case looking not only at the verdict, but at its aftermath: suspension, expungement periods and the administrative life of the record.

What to Do if Someone Enters Your Home: A Guide for the Victim

If you discover that someone has entered or is staying in your home without your permission, the first steps shape everything that follows:

• Call the National Police (091) or Civil Guard (062) immediately: while the intruders remain inside, the offence is still being committed, and that flagrante delicto situation allows officers to intervene and make arrests without prior judicial authorisation.
• Do not confront them or force your way in: beyond the physical risk, using violence could expose you to criminal liability (assault, coercion). Let the officers act.
• Report the facts without delay and document everything: title deeds or tenancy agreement, photographs of the property, damage to locks or windows, camera footage and neighbours' statements. An immediate report is both evidence of the lack of consent and a precondition for the fast-track procedure.
• Join the proceedings as a private prosecutor: this allows you to drive the case forward, request precautionary measures (removal from the property, restraining orders) and claim civil compensation for the damage caused.

Identifying the correct legal route is essential. If the property is your dwelling — your habitual residence or a second home in periodic use, which case law has treated as a dwelling — unauthorised entry or remaining is trespass under Art. 202 CP, punishable with imprisonment. If it is an empty property that does not constitute a dwelling, the conduct falls under usurpation, Art. 245.2 CP, punishable with a fine of three to six months; and if the occupation involves violence or intimidation against persons, Art. 245.1 CP provides for one to two years in prison, in addition to the penalties for the violence used. Since Organic Law 1/2025, both offences are handled as fast-track proceedings, which has significantly shortened response times for victims as well. If you are facing this situation, you can call us on +34 91 078 65 74 to set the report on the right track from the outset.

Supreme Court Doctrine

The settled case law of the Second Chamber of the Spanish Supreme Court has shaped the contours of this offence on several points we work with daily:

• Material concept of dwelling: it is the enclosed space where a person's private life unfolds, regardless of legal title; it extends to hotel rooms, inhabited caravans and second homes in periodic use.
• Protection of the de facto occupant: the offence protects the privacy of whoever actually lives there, not ownership; which is why a landlord can commit trespass against their own tenant's dwelling.
• Remaining as a self-standing form of the offence: someone who entered lawfully commits the crime by staying against the occupant's will after being asked to leave.
• Consent as the decisive element: it excludes the offence, and proving it (express, tacit or presumed) is at the heart of a large share of acquittals.

On the inviolability of the home, the Supreme Court judgment of 21 April 2026 (appeal no. 20486/2025) recalls that the home protected by Art. 18.2 of the Spanish Constitution covers a whole sphere of privacy that cannot be artificially split — it is not reduced to "a bed or a room" — and that, in shared homes where there is no apparent conflict of interest between occupants, the consent of one of them authorises entry by the authorities without needing the consent of the person under investigation. Although delivered in the context of police searches, this doctrine is also relevant for determining who can validly consent to an entry for the purposes of Art. 202 CP.