September 19, 2020

the law already guarantees the express eviction in the “raids” of the habitual residence and second home


Returning from vacation or spending the weekend away and your house has been taken over by strangers who are impossible to kick out immediately. The headlines are on the front pages of digital media, in television reports and in alarm announcements. It is a highly improbable situation in Spain and, if it occurs, the eviction would be immediate but, in view of the treatment of some media and certain political representatives, it would seem one of the great problems of the country.

Congress approves the law of express evictions against the 'squats'

Congress approves the law of express evictions against the ‘squats’

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The phenomenon of occupation has returned in recent weeks to the present, generating scaremongering from which security companies try to profit. All this, in a cocktail that mixes the housing need of a certain vulnerable population and a great lack of knowledge about the true scope of this phenomenon, its different forms and the legal mechanisms that judges and police have at their disposal to tackle it.

But, let us start at the beginning. It is not the same to occupy someone’s home, the place where they are protected in their privacy, even if it is even a second home, a caravan or a boat; that an empty premises or property owned by an individual, a bank or a vulture fund but in which no one develops his private life. The criminal consequences are also different in each case.

The first assumption is classified as trespassing, a criminal offense that protects the privacy and inviolability of the home and is punishable by up to four years in prison “precisely for the legal interest at stake, which requires greater guarantees,” he explains. Noberto Javier de la Mata, Professor of Criminal Law at the University of the Basque Country. In this case, as it is a “flagrant crime”, the Security Forces and Bodies have the obligation to immediately evict and detain the occupants without having to go to the judicial authority and independent of the judicial process that is opened to punish them. And it must happen even if three hours, three days or a month have passed.

“The burglar does not have the right to the inviolability of ‘his new residence’ because it is not such. Moreover, if the legitimate resident broke into his home, the crime he would commit would not be that of trespassing, but that of arbitrary carrying out of the own right – to concur with violence, intimidation or force in things – which could be considered justified by the existence of legitimate defense or a state of necessity, “says De la Mata.

Despite the raca-raca in some media, official statistics show that cases of burglary have little numerical importance, although that does not mean that they can generate significant discomfort to those who suffer it. In 2018, there were 285 convictions for this crime throughout Spain, according to the latest figures from the National Statistics Institute, which also reflect a downward trend since 2016. “The reality of the data is that people can be calm at home” , explains Judge Joaquim Bosch, who also assures that not all these convictions have to have deprived someone of the possession of their home, since the raid is any illicit intrusion into a home and sometimes occurs in couple conflicts or family.

According to the latest figures released by the Ministry of the Interior last year, a total of 14,621 illegal occupations of buildings were reported to the Police, the Civil Guard and the autonomous bodies. In the first six months, complaints have reached 7,450, 5% more than in the same period of the previous year. However, the complaints are for the generic concept of occupation, without differentiating whether they are first and second homes or other types of properties. In addition, they are what is called “known facts” of which the department headed by Fernando Grande-Marlaska does not know their subsequent qualification or the result of the judicial process.

Crime of usurpation

Judge Bosch affirms that many more cases of vacant house occupations do reach the courts. That is, they are not the home of anyone. “The vast majority of them are owned by banks and other entities. But there are also individuals who legitimately claim to regain possession,” he underlines. “In this case we would be facing crimes of usurpation and for which the Penal Code provides for lesser penalties – if there is no violence, only a fine – because the fundamental right to inviolability of the home does not come into play,” explains De la Mata.

The statistics do reflect an upward trend in this type of occupation, with 6,028 convictions for usurpation in 2018, 260% more than in 2013, in the midst of the crisis, when there were 1,669. The number has not stopped growing since then, practically doubling between 2015 and 2016. It is these occupations – and not the burglaries – that can generate in society the feeling that a judicial ordeal must be passed to evict who has been installed illegally.

“As it does not come into conflict with another residence and it is a minor crime, the Police must be cautious when intervening,” says De la Mata. In this type of case, it is more likely that the squatters have created an appearance of legality —for example, with a simulated contract, an electricity bill… —that induces the agents to doubt. And it is also more difficult for a judge to accept an injunction that allows a speedy eviction especially if that appearance of legal use has been created. “What is usually done is to point to the trial and in the sentence the eviction is agreed. That the Police can act without a court order only in the first 48 hours is an urban legend. It is not in the law nor is there the slightest jurisprudence to respect, “explains Bosch.

In recent days, the case of a man from Mataró who feared being accused of burglary and coercion to recover his home when the alleged squatters had gone on vacation to Ibiza, according to the media, has gone viral. “This is scary …”, tweeted the former president of Ciudadanos, Albert Rivera, linking information about it. However – and despite the obvious lack of communication that the situation can generate – it was not a case of occupation, but a conflict of another nature. As the affected person explained to Antena 3 and Telecinco six years ago, he rented his home without a contract to two people (one of them known) who had stopped paying the agreed monthly payment and did not leave the property.

“The legislation works, you just have to apply it. But these cases should not be confused with conflicts of interest that can occur, for example, with a tenant who has exceeded the time of the contract or with non-payment of fees for rent. But if someone enters a dwelling they are immediately evicted, “insists De la Mata. Bosch, for his part, describes the state of opinion that is being generated around the occupations as “absolutely excessive”. “To raise awareness of a problem that does exist, which is encroachment, people are getting scared that they may lose their home,” he says.

In fact, there is not only criminal law as a solution to this type of usurpation. To avoid having to wait for a criminal sentence that can take months or years, there has been a civil procedure since 2018 that allows individuals, non-profit entities and public entities that own or possess social housing to request, by filing a lawsuit, the “immediate recovery“of occupied housing. This reform, which provides deadlines and costs, was criticized by the parliamentary left for not guaranteeing the relocation of vulnerable families who have occupied properties. In fact, United We can take it to the Constitutional Court when considering that violates the right to housing and the inviolability of the home.

The issue of occupation has many edges. Between the legitimate interest of individuals to recover their possessions and the possible problems of coexistence that may arise, emergencies emerge for those who lack income and do not have a place to live precisely at a time when there are thousands of homes. empty in the hands of banks or large forks.

“This is a contradiction that generates social effects and is that unfortunately many people who have no income and who have nowhere to go are getting into those empty houses. That is the reality of most of the cases that I see in my court” , says Judge Bosch, who believes that it would be a mistake to refer this problem to the criminal sphere. “Ideally, there would be more social policies that avoid this type of situation as much as possible and facilitate a housing alternative in case of eviction,” he says.

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