Illegal Occupation: Trespass or Unlawful Occupation?

If someone moves into your home without permission, the first question the police and a solicitor will ask is whether that property is your dwelling. The answer decides almost everything. When the occupied property is where you live, even if only temporarily, it's known as allanamiento de morada (trespass in a dwelling), and the law allows for a much faster response. When it's a property that's unoccupied, such as an empty flat or a home up for sale, it's usually known as usurpación (unlawful occupation of property), which has a slower and less forceful response. In this article we explain the difference in plain language, what to do in each case, and which mistakes are worth avoiding.

A note before we start: this is general information, not legal advice. Every occupation has its own circumstances, and the strategy should be set by a solicitor who knows your case.

What trespass in a dwelling (allanamiento de morada) is

Article 202 of the Spanish Criminal Code (Código Penal) punishes anyone who, without living there, enters another person's dwelling or stays in it against the wishes of its occupant. The key word is morada: the space where a person carries out their private life. It doesn't need to be your registered address (empadronamiento), nor do you need to be inside at the time. What's protected is the privacy of the person who lives there.

That's why, if you come back from a few days away and find strangers inside your main home, you're facing trespass in a dwelling. It's considered a particularly serious offence, and when the police detect it while it's happening, they can act immediately, without waiting for a court order.

What about a second home?

This is where things get grey. The courts have generally accepted that a second home can count as a dwelling if it's genuinely used: it's furnished, has utilities connected, keeps your belongings and you visit it fairly regularly, even if only in summer or on some weekends. In the Canary Islands it's common to have a flat on the coast or the family home in the village, and in many such cases you can argue it counts as a dwelling. But it isn't automatic: the more the property resembles a place where someone actually lives, the easier it is to make that case.

What unlawful occupation (usurpación) is

Article 245 of the Criminal Code deals with anyone who occupies, without authorisation, a property, home or building belonging to someone else that doesn't constitute a dwelling, or who stays in it against the wishes of its owner. This is the typical case of an empty flat, a recently inherited home nobody uses, a property up for sale, or a property between one tenant and the next.

When the occupation happens without violence or intimidation, the penalty set is a fine, considerably lighter than that for trespass in a dwelling. In practice, that means eviction usually requires a prior court ruling and the process can drag on.

Quick table: how they differ

	Trespass in a dwelling (allanamiento de morada)	Unlawful occupation (usurpación)
What's occupied	Your dwelling: your main home and, depending on the case, a second home in use	A property that isn't a dwelling: an empty, unused property, or one up for sale
What the law protects	Privacy and the inviolability of the home	Possession and ownership of the property
Seriousness	An offence punishable by imprisonment	Without violence, a minor offence punishable by a fine
Immediate response	Possible if detected while it's happening	Usually requires a prior court ruling
Routes available to you	Mainly criminal proceedings	Criminal or civil, as appropriate

The 48-hour myth

There's a widespread idea that, once occupants have been inside for more than 48 hours, they can no longer be removed without a long trial. There's no rule that sets such a deadline. What matters is whether the property is your dwelling and whether the police can establish that the offence is being committed at that moment. Acting quickly helps, because the sooner you report it, the easier it is to prove there was no consent, but there's no legal clock that resets at 48 hours.

What to do if your main home is occupied

1. Call the police from outside the property. In the Canary Islands you can dial 112, which will put you through to the right service. Explain that it's your main home.
2. Prove it's your dwelling: the title deed or tenancy agreement, utility bills in your name, your registration at that address (empadronamiento) and any evidence that you live there.
3. File a report if the officers can't resolve it on the spot, and keep a copy.
4. Notify your insurer. If your home insurance or your legal expenses policy covers this situation, the sooner you report it, the sooner they can assign you a solicitor.
5. Find somewhere to stay while it's resolved and keep a record of the costs: some policies cover related items, and it's worth having them documented.

What to do if an empty home is occupied

If the property isn't your dwelling, the process is somewhat longer, but you need to start it just as quickly.

1. Report it as soon as possible to the police or the court. Provide the title deed, the up-to-date land registry certificate (nota simple) and the bills proving the property is yours and that you haven't authorised anyone to be there.
2. Document the condition: photos of the façade and the forced lock, statements from neighbours, and the date you found out.
3. Speak to a solicitor to choose the route. There's the criminal route, for unlawful occupation, where you can ask the judge to order eviction as a precautionary measure. And there's a specific civil route for private owners to recover possession of their property, designed to be faster than ordinary court proceedings.
4. Notify your insurer and ask what your policy covers: solicitor, court agent (procurador), locksmith, repairs.

The choice between the criminal and civil routes depends on each case: how long the property has been occupied, whether children or vulnerable people are involved, what evidence you have, and the court's workload. It's a technical decision that a solicitor should make together with you.

What you shouldn't do

• Force your way in or remove the occupants yourself. Even though the property is yours, taking the law into your own hands can backfire and turn you into the one being reported.
• Cut off the water or electricity to force them out. This can be treated as coercion and complicate the proceedings.
• Pay someone to remove them. Besides the legal risk, any incident will also count against you.
• Negotiate without leaving a paper trail. If you decide to reach an agreement for them to leave, do it with legal advice and in writing.
• Wait and see if they leave on their own. Time works against you: it makes evidence harder to gather and increases the damage.

Real-life cases

Ana comes back from holiday

Ana lives in a flat in Santa Cruz and spends two weeks away. When she comes back, the lock has been changed and there are people inside. It's her main home, so she calls 112 from the entrance, shows the title deed and the bills, and the officers act as they would with a case of trespass. She then notifies her insurer for the lock replacement and the door repair, if her policy covers it.

Grandad's house in the north

Three siblings inherit their grandfather's house in a village in the north of Tenerife. Nobody has been there for a year and the utilities have been disconnected. When a neighbour tells them people are living there, the situation fits unlawful occupation better. They'll need to agree among themselves, report it, prove ownership and find a solicitor. If any of them had taken out a policy on the house, it's worth checking whether it covers unoccupied properties.

The flat between two tenants

An owner leaves their flat empty for three months while looking for a tenant. It gets occupied in that time. It isn't a case of non-payment, because the occupants have no tenancy agreement. It's unlawful occupation, and their rent guarantee policy, if they had one, wouldn't be the one that responds.

Checklist of documents worth keeping to hand

• Title deed or a recent land registry certificate (nota simple).
• Water, electricity, council tax (IBI) and community fee bills in your name.
• Dated photos of the inside and outside of the property.
• A copy of your home policy and, if you have one, your legal expenses policy.
• Contact details of a trusted neighbour who could testify about how the property is used.

If you want to get ahead of the problem, how to prevent the occupation of an empty home covers the measures that work best, and what to check in your home policy covers the questions worth asking your insurer.

How we help you at Retuerto y Asociados

We're not solicitors, but we do know what your policy says and how it's triggered. We check whether your home or legal expenses insurance covers occupation, for which properties and with what limits, and if needed we compare alternatives for you on our protection against illegal occupation page. And if it's already happened, we help you notify the insurer and follow up the file. Get in touch and we'll look at it together.