March 3, 2021

In which cases are squatter evictions suspended during the pandemic? | My rights



The economic crisis generated by the pandemic is especially affecting the most defenseless households. Different organizations, such as Oxfam Intermón, are warning that the Covid will trigger poverty in Spain. One of the consequences of this situation is the inability of many citizens to pay for housing. To prevent the eviction of these vulnerable families, the Executive approved in December a temporary anti-eviction law (while the state of alarm lasts). However, the controversy has jumped a week ago when the illegal occupants of the buildings were included among the protected groups.

Indeed, through a final provision of Royal Decree-Law 1/2021, published on January 20, this controversial modification was “sneaked in”, which has provoked criticism from some opposition parties and a lot of confusion about its practical application. The novelty is that it is possible to stop the eviction of the house in the criminal sphere, when until now it was only contemplated for non-payment of rent or mortgage.

These are the keys to understanding in which cases this benefit operates, although, in any case, as the rule itself indicates, the judge will have the last word.

Who orders the stay of the eviction?

The judge who knows the criminal process where the eviction is decided. The legal reform gives it the power to suspend the launch for the duration of the state of alarm (from January 21 to May 9). In other words, in any case, the decision to stop or not the eviction remains in the hands of the criminal judge.

Are those who have occupied the home criminally protected from eviction?

Yes. Royal Decree-Law 1/2021 has changed the regulation. Currently, vulnerable tenants cannot be evicted without a legal contract for the duration of the pandemic.

Until the January reform, eviction was allowed in all cases in which a crime had been committed. That is, the launching (eviction) of intruders was not stopped if they had entered the home illegally, either through usurpation (Article 245 of the Penal Code) or break-in (Article 202 of the Penal Code).

The difference between these two criminal offenses is that, in the raid, the squatter enters a property that constitutes the habitual residence of its legitimate owner, while in the usurpation the occupied property does not serve as a residence. However, the courts also protect the second residence in this way, because they do not identify the dwelling with the administrative definition of domicile to obtain criminal protection. In this way, both the property that is occupied most of the year, and in which it is registered, as well as that which is used occasionally, as long as it is furnished and with essential services (water, electricity …), they enjoy the same protection.

What illegal situations are covered?

The suspension of the eviction is only contemplated in those cases of peaceful occupation of a property that does not constitute a habitual residence or second residence. That is, in the case of a minor offense of usurpation (of article 245.2 of the Penal Code). For example, if the entry was made using the door kick technique.

This is how the magistrate of the Second (criminal) Chamber of the Supreme Court, Vicente Magro Servet, understands it. This does not mean that it has a residual application, since it is the crime that has caused the most practical application problems in the courts, in quantitative terms, since 2007. This is stated by Joan Manel Gutiérrez Albentosa, substitute prosecutor and doctor of Law in his work “Basic concepts on the crime of usurpation of real estate” published in the newspaper La Ley.

The rule itself indicates that the measure does not apply to cases of usurpation with violence or intimidation, punishable by article 245.1 of the Penal Code with imprisonment (one to two years), in addition to the penalty for damage caused to people.

In no case does it refer, on the other hand, to those residents of the property who, legally living in it, have not been able to meet their payment obligations. In his case, this problem would be heard in civil courts.

What buildings must withstand temporary occupation?

In order to stop the eviction, the (non-habitual) home must be owned by a person or company that has more than 10 properties.

The rule exempts from this group the social housing already assigned, and those cases in which the property is used to carry out illicit activities.

When must the occupation have occurred?

Entry into the home must have occurred before April 2, 2020. That is, the occupation must be prior to the current state of alarm.

Is it a shield for all squatters?

No. The Royal Decree-Law clarifies that only those peaceful squatters who also meet certain requirements can benefit from the stoppage of eviction.

It must be a dependent person (according to dependency law) or a victim of gender violence. Whoever is in charge of a dependent or minor living with him in the building is also protected. In addition, they must be in a situation of economic vulnerability, which means, in general, that their income does not exceed three times the IPREM (Public Indicator of Multiple Effects Monthly Income), an amount that increases for each child or dependent in charge .

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