On 20 August 2020, the Provincial Prosecutor’s Office of Valencia issued a decree instructing the province’s prosecutors to order, as an interim measure, the immediate eviction of properties being occupied illegally.
Squatting causes homeowners’ distress and frustration. Evicting squatters is a lengthy process that entails time, money and emotional strain, particularly due to the stress of knowing that there are strangers living in your home that show no respect for your property and are most likely going to cause damage.
Furthermore, this social phenomenon has a “knock on effect” as often, due to the lengthiness of the eviction process, owners opt to pay a sum of money to the occupants so that they leave the property voluntarily. This way ownership is recovered immediately, and although it entails paying the occupants, you save money as you avoid incurring legal costs. This circumstance, which is becoming more and more well known, is contributing to an increase in squatting.
The Provincial Prosecutor’s Office of Valencia has made a courageous decision in accordance with private property rights. This decision consists of requesting the eviction of the occupants as an interim measure, so that it is not necessary to wait for a court judgement before the owners can regain possession of their property. It would be gratifying if this instruction from the Provincial Prosecutor’s Office of Valencia were to be extended to all other provinces.
Moreover, illegal occupation can constitute both a crime of usurpation without violence or intimidation (art. 245.2 of the Criminal Code) when the property is not a residence and a crime of breaking and entering (art. 202 of the Criminal Code), when the private property is the residence of the owner or a legal entity (art. 203 of the Penal Code). The distinction lies in the fact that entering or remaining in someone’s residence constitutes a violation of a fundamental right (the inviolability of the home), which is not the case if the property is not the owner’s residence.
The decree issued by the Provincial Prosecutor’s Office of Valencia is solely for the crime of breaking and entering and not for usurpation. Therefore, for prosecutors to order immediate eviction, the property must be the person or legal entity’s “residence”. However, the term residence does not only refer to the owner’s permanent home, but also includes second homes.
Furthermore, the Prosecutor’s Office recalls in its own instruction that case law broadens the meaning of “residence” to include all the rooms internally connected within the property, without it being necessary for it to be used as a permanent, temporary or occasional residence. In other words, it is not a requirement for the property to be the owner’s main residence. Thus, a second home, a seaside apartment, a holiday home, etc… is also considered a residence. Moreover, the decree itself includes the case law criterion on the concept of residence and states literally that “it is not necessary that it be an apartment or a villa, it is possible that the space in question is a caravan, a boat, a tent, etc.”
These instructions from the Provincial Prosecutor’s Office of Valencia are particularly useful as they aim to return possession of the property to its rightful owner without having to wait for the court judgement, meaning that the squatters can be evicted immediately.
Nevertheless, we must point out that, without prejudice to the praiseworthy decision of the Prosecutor’s Office, the interim measures can also be requested by the owner of the property, so we strongly recommend that, if affected by a proceeding for this offence, the owner of the property also instigates the interim measure which consists of evicting the occupants immediately.
To be able to request the interim measure, several requirements must be met, which are:
(i) That the delay in issuing the judgement may result in damage to the owner – technically known as the risk of procedural delay or periculum in mora.
(ii) That the complainant’s claim has the appearance of viability – technically known as the appearance of legal standing or fumus boni iuris.
(iii) That the interim measure requested is proportionate to that requested in the complaint, in which case police action must be taken to verify the ownership of the property, the lack of authorisation for occupation and the absence of a legitimate title to the property (title refers to contract, inheritance, etc. ).
If these requirements are met it is possible to request and obtain an interim measure enabling the immediate eviction of the squatters, allowing the owners to regain possession of their property. On the other hand, the Public Prosecutor may bring the facts to the attention of the Social Services so that they can adopt the appropriate measures for the protection of the occupants who need it.