Criminal Lawyers in Unlawful Remaining Defense

Unlawful remaining in another's dwelling constitutes the second typical modality of the trespass offence, set out in the final part of Article 202.1 of the Spanish Criminal Code. The protected legal interest is the inviolability of the dwelling recognised in Article 18.2 of the Constitution, understood not only as the right to prevent non-consensual entry but also as the power to exclude whoever remains against the express or tacit will of the occupant. The defining feature is that entry was initially consented —by invitation, contract, affective relationship or any other legitimating title— but the subject remains in the domestic space once that consent is revoked. Consolidated Supreme Court case-law has clarified that the offence is perfected at the very moment of refusal to leave after a clear and sufficient request by the dwelling's owner.

The factual modalities consolidated by case-law are extraordinarily varied. They frequently include guests who exceed the invitation received (relatives, friends, occasional partners), ex-partners refusing to leave the common dwelling without a recognised use title, tenants remaining after contractual termination when flagrancy or intimidation concurs —absent flagrancy, the route is exclusively civil eviction—, live-in domestic employees who remain in the property after dismissal, guests on platforms such as Airbnb who extend the stay without the owner's consent, and cases of conflictive supervening family cohabitation. Doctrine clearly distinguishes this modality from peaceful usurpation of real estate under Article 245.2 CP —reserved for properties not constituting a dwelling— and from the offence of breach of sentence under Article 468 CP when a prior restraining order is in force.

The request is the key element of the offence and the apex of defence strategy. Case-law requires it to be clear, express and unequivocal, comprehensible to the recipient and coming from a legitimated person, i.e., the dweller or co-holder of the right to domiciliary inviolability. No specific form is required: it can be verbal —proven by witnesses, lawful recordings or instant messaging (STC 114/1984 remains the reference on the lawfulness of recordings by one of the interlocutors)—, written (with strong preference for burofax with receipt acknowledgment and content certification) or evidenced through police intervention. Refusal or active silence after the request perfects the offence if the awareness and will to remain despite the owner's opposition concur. The aggravated modality with violence or intimidation (Art. 202.2 CP, 1 to 4 years' prison and 6 to 12 months' fine) applies when remaining is maintained with physical force or threats, configuring a qualified type of significant punitive severity.

The technical defence rests on four recurring and highly effective axes. First, challenge to the request: absence, ambiguity, implicit formulation or issuance by an unlegitimated person (visitor, cohabitant without title, relative without co-ownership) are grounds of atypicality through defect in the normative element. Second, the existence of a legitimate title to remain: valid tenancy contract, use right awarded by family judgment (Arts. 96 and 103.2 CC), co-ownership, legally protected cohabitation or non-extinguished affective bond. Third, absence of intent: mistake about the revocation of consent, confusion about the definitive nature of the request, or reasonable expectation of tolerance consolidated by the owner's previous conduct. Fourth, concurrence of offences: unlawful remaining rarely appears alone and usually concurs with coercion (Art. 172 CP), threats (Arts. 169 ff. CP), domestic violence (Art. 173.2 CP), stalking (Art. 172 ter CP) or breach of precautionary measures (Art. 468 CP); the correct concurrence classification (instrumental, real or ideal) determines the final penalty and opens or closes the route to conformity under Art. 801 LECrim.

In current forensic practice, proceedings for unlawful remaining have significantly increased amid three social phenomena: the housing crisis and sharing economy (Airbnb, Booking, tourist rentals), conflictive affective breakups disputing attribution of the family home, and multigenerational cohabitation strained by housing access difficulties. Act 12/2023 on the Right to Housing and Organic Law 1/2025 on Justice Service Efficiency have impacted relevant procedural aspects (precautionary measures, deadlines, digitalisation), although the substantive regulation of Art. 202 CP remains unchanged. At Alonso Sala we approach each unlawful-remaining proceeding attending to the dual criminal and civil dimension: criminal defence requires refining request, intent and material unlawfulness, while the parallel civil route (eviction, attribution of use, contested divorce) conditions and modulates the negotiating position. Our early intervention is decisive: immediate legal assistance prevents self-incriminating statements, sets a coherent strategy from the start with the underlying civil situation and maximises the probability of dismissal, stay of proceedings or acquittal.