On July 12, ABC newspaper published an editorial in which it pointed out that the occupation of homes had gone from being an excuse for the left to attack private property, to becoming a serious disruption of citizen life that is producing episodes of neighborhood violence, since the "squatters" are taking advantage of a legality as voluntary as it is useless. A few days later, the newspaper El Mundo included in its July 24 edition another editorial with the title "Putting an end to the scourge of squatting", which threatens to spread in Spain.
The occupation of public lands and abandoned houses is not a new phenomenon, but it already existed in the past after the Civil War, due to the massive immigration from the countryside to the big cities, which created in the outskirts of these suburbs or "misery cities", like Pozo del Tio Raimundo in Madrid or Vacie in Seville. Faced with the shortage of housing and insufficient economic resources, the new proletariat of peasant origin occupied spaces of municipal property to build their miserable shacks in towns or neighborhoods that lacked the most basic public services: light, water, sewage or paving. It was a consequence of the struggle of these people for survival and their intention was not to take over public land for criminal purposes.
This occupational phenomenon, which occurred all over the world, became ideological from the 1960s onwards with the spread of the "hippie" movement in Britain, Germany, Holland and the United States, and was institutionalised in the 1980s with the initiatives of the English "squatters" and the politicisation of the issue. Protesters occupied spaces and houses to protest against the difficulties of the most disadvantaged classes to find housing and tried to make the right to housing prevail over the right to private property. The Dutch anarchist movement "PROVO" had a special impact, as it succeeded in carrying out mass demonstrations and mobilizations.
The problem is that there has been a shift from an occupation of public or private property caused by the personal needs of the occupants and their families, to an increasingly widespread abuse of "squatting" with criminal or quasi-criminal intent. Some tenants failed to pay their rent and refused to leave their homes, and others occupied empty dwellings with the intention of remaining in them without any contribution to their owners, especially if they were banks or companies. A further step has been taken with the creation of professional "mafias" who occupy the dwellings and rent them to bona fide tenants or simply hand them over temporarily to the occupants in order to blackmail the owners and force them to pay "compensation" to get their property back. These mafia practices have developed considerably during the period of the state of alert, when fraudsters have taken advantage of the confinement of landlords to occupy many empty dwellings, especially second homes or dwellings of foreigners, with impunity.
According to a study by the Cerdá Institute, the number of illegal occupations has risen from 2,207 in 2010 to 12,1214 in 2018. So far, 87,000 complaints have been filed, and it is likely that there are another 100,000 unreported "squats", due to coercion and threats to owners or because they are de facto abandoned properties, usually by financial entities. Between January and June this year, reported occupations amounted to 7,450, an average of 47 reports per day. The economic crisis, the rising cost of housing, the inaction of the Administration and the impunity of the "squatters" all point to the fact that this scourge will continue to grow.
Article 34 of the Constitution recognizes the right to private property and states that no one may be deprived of his or her property and rights except for a justified reason of public utility or social interest, with appropriate compensation. The Magna Carta also guarantees legal certainty - Article 9-3 - and states that all persons have the right to obtain effective protection from judges and courts in the exercise of their rights and legitimate interests, without, under any circumstances, being defenceless - Article 24-1.
Objectors to private property have sought to counter this right with that of housing, since - in accordance with article 47 - all Spaniards have the right to enjoy decent and adequate housing. The public authorities must promote the necessary conditions and establish the relevant rules to make this right effective, regulating the use of land to prevent speculation. It is not, however, an absolute right like property and does not impose an obligation of result. The State is not obliged to provide its citizens with decent housing, but simply to ensure the appropriate use of land to prevent speculation.
1) Criminal law
The illegal occupation of housing was not criminalized until the reform of the Criminal Code in 1996, being considered until then as a form of coercion that can be prosecuted only through a civil action. Article 245 provides that anyone who occupies, without due authorization, a property, dwelling or building belonging to others that does not constitute a dwelling or is kept there against the owner's will, shall be punished by a fine of three to six months. Only if the occupation was carried out with violence or intimidation could a prison sentence of one to two years be applied. According to article 202, if the occupation affects an inhabited dwelling, then the perpetrator commits the crime of breaking and entering and is liable to a penalty of six months to two years.
The judges have been quite tolerant of the occupants. In addition to requiring the owner's consent, only occupation with the obvious intention of exercising possession rights over the property and with the intention of permanence and total deprivation of the exercise of the right by the owner will be considered punishable. Trials are usually long and sentences -when they occur- are short. One of the most scandalous cases has been the decision of the owner of Court No. 5 in Alicante who sentenced a couple who, with their two children - and sometimes with another family member - had occupied a luxury home on San Juan Beach for more than two years, to a fine of 540 euros, claiming - without any proof - that they had made a payment of 12,500 euros in rent. He still had the audacity to appeal before the Alicante Provincial Court, which confirmed the sentence and, during the whole time the trials lasted, the Romanian couple continued to enjoy the "uti possidetis". And, to make matters worse, they declared themselves insolvent and did not pay one cent. This is why lawyers advise their clients not to resort to criminal proceedings but to opt for civil ones.
2) Civil proceedings
The normal route open to owners of occupied dwellings is the civil action of requesting eviction from the judicial authority. The action is long and tedious - usually taking between nine months and a year and a half - and is not always favourable to the owner, but even when it is, it is ultimately unfavourable to the owner. A relative of mine rented an apartment in Seville to a person who stopped paying the rent after three months. He refused to leave the apartment and the owner was forced to report him for eviction. The trial lasted for more than a year and, although the sentence was condemnatory, the tenant declared himself insolvent, illegally occupied the property for two long years and, when he finally left, took some of the belongings of the house and damaged others with total and absolute impunity.
Illegal occupants are often protected by an extensive and spurious interpretation of article 18-2 of the Constitution, which states that the home is inviolable and may not be entered without the consent of the owner or a court order, except in cases of flagrante delicto. The illegal occupant claims ownership of the occupied home on the basis of the existing rental contract, even if it is not honoured, or on the basis of an alleged non-existent or false contract, and benefits from the fact of possession of the property. A judge's eviction order is often ignored or deferred until the police come forward to enforce the order. The eviction could be done without a court order because the illegal occupation of property is a continuing and flagrant offence. However, there is excessive tolerance on the part of the police, especially when there are minors or elderly people among the occupants.
Let us compare the situation with other countries in our immediate environment. In Germany, the reported occupants must vacate the property within 24 hours. In Great Britain the police can evict squatters immediately, as squatting is a crime and the occupants can be arrested if they refuse to leave the occupied premises. In Italy, the complaint leads to a speedy trial and, within a short time, the judge can authorize the police to evict the occupants. In the Netherlands, a simple complaint to the police leads to the police acting to evict the "squatters" with judicial authorisation.
In Spain, in order to recover an occupied property, one must first go to court. However, the Chief Prosecutor of the Balearic Islands, Bartomeu Barceló, has issued a provision authorizing the police to evict an illegally occupied home without a prior court order, when the owner files a complaint with the police, provided that the crime was flagrant and the occupations that are taking place on a daily basis cannot constitute more flagrant crimes of property usurpation. According to the Public Prosecutor, "we did not invent anything, we only collected what the law says, clarified the way of acting and gave the instructions to the Security Forces and Corps". The examining magistrates of Palma held an extraordinary meeting and agreed to give maximum urgency to the occupation files. As a result of this pragmatic policy, so far this year, occupations have decreased by 19% in the Balearic Islands, while they have increased by 34% in Galicia, 20% in Murcia, 14% in the Valencia Community and the Canary Islands, and 13% in Catalonia. If the Balearic Islands Public Prosecutor's Office has made a logical and appropriate interpretation of the existing regulations, why can't the same be done in the rest of the Autonomous Communities? The PP, Ciudadanos and Vox have asked the State Prosecutor to issue a similar instruction applicable at national level.
In 2018 the Civil Procedure Law was modified to speed up the procedures for evictions by means of express trials, but the effects have hardly been felt, due to the collapse of the courts as a result of the Covid-19 pandemic. The administration not only fails to help, but also provides facilities for squatters. Thus, a provision of the First Vice-presidency of the Government obliges City Councils to register all occupants of homes, even if they are illegal, because registration on the census is "completely independent of legal-private disputes over the ownership of the home", and "any address where neighbors actually live, regardless of whether or not it is legal, must be accepted as the domicile for the purposes of registration.
The highest degree of support for illegal occupation of housing has been given in Catalonia, where the Generalitat - at the proposal of the CUP and Catalonia in Common - adopted Decree 17/2019 on urgent measures to improve access to housing, despite the fact that the Council for Constitutional Guarantees considered it unconstitutional, as it violated Articles 9-3 and 33 of the Constitution, and described it as "irrational, arbitrary and meaningless". Among other absurd measures - which have achieved the opposite of what was supposedly intended - the Decree obliges owners to offer their housing in social rentals to those who have illegally occupied it for six months. It is tantamount to imposing a forced contract and an illegal occupation should in no way imply a title of access to possession, as it would create great legal uncertainty. The Generalitat tried to correct its mistake with Decree 1/2020, and has made the situation even worse. It considers "empty housing" any occupied housing, even if the owner has initiated legal proceedings for its recovery. The president of the Association of Promoters of Catalonia, Lluis Marsá, has pointed out that the legitimisation of illegal occupations represents a very serious precedent of impunity in the face of a crime that is occurring more and more frequently.
The PP has appealed against these decrees to the Constitutional Court because the right to property enshrined in the Constitution loses its legal meaning and economic value if the owner has no effective possibility of judicial protection against disturbances of possession. The Decrees aggravate the difficult situation in the housing market, as most of those affected are smallholders who are equated with banks and large investment funds as "large holders", thus equating two very different situations. Occupation without a qualifying owner is legitimised, giving priority to "squatters" over people on the waiting list for social housing, thus creating an incentive for illegality. As María Jesús Cañizares has pointed out, it protects the "squatter", persecutes the owner and humiliates humble families waiting for social housing without kicking in the door. It is a rare occurrence that the judges in Barcelona have taken the unusual decision not to apply the Decrees and have reported this to the Catalan High Court of Justice, the Public Prosecutor's Office and the Bar Association.
The mayor of Barcelona, Ada Colau, has actively contributed to this chaotic situation. She was a cook before becoming a nun, as she practiced the sport of "squatting" in an abandoned Civil Guard barracks in Barceloneta. In 2007 she took part in the occupation of the "Espai Social Magdalenes" -which lasted three years- and attended the big party of Can Masdeu, to commemorate the thirteen years of occupation. Founder in 2009 and spokesperson of the Platform of People Affected by Mortgages, she launched the campaign "Stop evictions". Elected as Barcelona's first mayor, Colau tolerated the illegal occupation of the Transformer building - a municipal property - and paid the occupants for electricity for two years. She also promised to buy the Ca La Trava building in the Gracia district to hand it over to the "squatters", although she has not been able to do so due to existing legal obstacles. He forced the owner of a property occupied by 35 Algerians to renovate it into decent housing and rent it out to squatters at social prices. The Barcelona City Council has financed this year two workshops for young people on "Freeing up spaces" and "Self-management and alternative housing", managed by members of libertarian movements who defend the legality of "squatting" and the implementation of a sustainable model of management of common spaces at the service of the people.
The mayoress has the unhonorable title that Barcelona is the city in Spain with the highest number of occupied dwellings. Colau's complicity has allowed the creation of mafia networks of "mediators", who "rent" buildings to people in need of housing and blackmail the owners to pay them significant financial compensation to evict the "squatters", thus obtaining a double benefit. A very different situation exists in Madrid, whose mayor, José Luis Martínez-Almeida, declared after his election zero tolerance for squatting. He has put an end to some historic occupations and managed to reduce the number of complaints by 9.5% so far this year.
The cases of occupations have multiplied during the state of alarm. As one Catalan woman health worker who found her house in Vich occupied when she returned from a mission in Reus and has still not managed to recover it has commented bitterly, during the confinement the only people who could move freely were the "squatters". The mafias kept accounts of the empty houses, occupied them with impunity and rented them out to bona fide third parties or accomplices in the manoeuvre. Although they did not discriminate between nationals and foreigners, they focused their activity on the latter's homes, since they had no possibility of going to Spain to try to recover their properties. As the occupant of a recently restored mansion in Estepona cynically said to the architect who renovated it, it was better for the guiris to stay and look after their properties, as it would take them more than a year to return. Boris Becker managed to recover his residence in Mallorca occupied by some Germans after several months of judicial struggle and the occupants escaped with a fine of £480, which they also failed to pay. In Alberic -Alicante- an organized mafia occupied a set of eight chalets with garden and swimming pools and put them up for rent.
There are hundreds of thousands of second homes that foreigners have in Spain, especially British and Germans, and a phenomenon of insecurity, panic and uncertainty is taking place among them, which is leading many to get rid of them, as they see their powerlessness to keep their properties in the face of the impunity of the "squatters". This gives a terrible image of Spain before international public opinion and represents a significant decrease in the nation's income, as the costs of residential tourism are usually much higher than those of seasonal tourism.
To safeguard the right to property in Spain, the law, the courts and the security forces have all failed. The regulations, both criminal and civil, are insufficient and although there are rules allowing immediate eviction from illegally occupied property, they are often not enforced. The current normative framework generates a lack of protection for the owners, who are left defenceless before those who violate the laws, who usually know their nooks and crannies in the case of "squatters". Trials are long and uncertain for the owner, since judges are generally quite tolerant of occupations and, when they sanction them, they issue rather lenient sentences of simple fines. The police are caught in the crossfire and do not dare intervene, even when a flagrant occupation of housing is carried out for fear of being accused of abuse of authority, especially if there are children and elderly people among the occupants. The right to property is not sufficiently safeguarded and property owners do not enjoy the guarantee of effective judicial protection and non-defence enshrined in the Constitution.
The law should be tightened up to make the crime of illegal occupation of property a more serious one and to allow the reporting and display of the title to property to be sufficient for the immediate eviction of occupied dwellings, without the need for judicial recourse or a trial. The judge should be able to take precautionary measures and support the action of the police in carrying out evictions. The police should be able to do so, with the subsequent support of the judge, in the case of flagrante delicto.
The opposition parties have submitted four non-binding proposals to amend the Criminal Code and the Criminal Procedure Act in order to increase penalties against "squatters", facilitate evictions and increase guarantees for property owners. The PP proposes an "express eviction", which would allow it to be carried out within a maximum period of 48 hours, since it has reasoned that, apart from the intrinsic seriousness of the usurpation, it entails other crimes, such as drug trafficking or human trafficking. Citizens have suggested extending the statute of limitations for the crime from one to five years. Vox has suggested that the police should be able to expel intruders without judicial authorisation in cases of flagrante delicto. PP and Ciudadanos will try to negotiate with the PSOE to support these proposals, but it is to be feared that Pedro Sánchez will choose to support the position of Podemos, his government partner, which is openly in favour of justifying and legalising "squatting".