The modification of the Civil Procedure Law, which will come into force on July 2, will allow owners to recover their illegally occupied buildings more easily and quickly.
Around 90,000 homes are illegally occupied in Spain according to sector data. It is a figure that, although difficult to calculate, has not stopped growing in recent years.
To put an end to the defenselessness of the owners of these properties, the new Law 5/2018, in relation to the illegal occupation of houses, introduces in the Law of Civil Procedure a novel mechanism for the recovery of illegally occupied buildings.
María Lorenzo Meyer, commercial director of the rentals area of Chávarri Abogados, responds to the main doubts about the new regulations.
1. Why has the law changed?
The explanatory memorandum of the law states that the objective is to provide the owners with an agile mechanism to fight against “real organized, very lucrative and mafia-like actions that disturb and deprive individuals of the possession of housing. that legitimately corresponds, or make difficult and impossible the management of those homes in the hands of non-profit social organizations and entities linked to public administrations “.
2. What legal alternatives exist to recover a property?
An owner can go both by civil means, in which there are four differentiated actions to recover the possession of a property, as well as by criminal means, in which two actions can be initiated against the occupant depending on whether there has been violence or intimidation at the time of entering the house. The cases in which there is such violence or intimidation are included in article 245.1 of the Criminal Code (penalties of up to two years in prison), while, otherwise, they are classified as minor offenses (a fine of up to six months).
3. Is the criminal or civil procedure preferable?
There is no unanimous answer. “There is no doubt that the intimidating element of a criminal notification is not comparable to it in civil proceedings, although the certainty of certain judges to classify this type of occupation as a crime of usurpation is also true,” says Lorenzo.
4. Within the civil path, what mechanism is the most appropriate?
Depending on the circumstances of the case, we must choose one way or another. For example, if the occupants do not have a legitimate title to occupy the property (such as a lease), the regulations, through the figure of the interdict (which already exists in the Civil Code), will protect the owner (whether owner or not) when it is stripped of the property.
5. Who can choose this procedure?
Only natural persons, non-profit entities and public entities that own or own the occupied property in a legitimate manner.
6. How can I file the complaint if I do not know the name of the squatters ?
The commercial director of Chávarri Abogados explains that an issue that generated great problems in the admission of the demands was precisely the fulfillment of the requirement that the Civil Procedure Law establishes for its filing: that the data and circumstances of identification of the defendant be established. However, the new law comes to resolve the question in a clear manner, since the demand “may be addressed generically against the unknown occupants of the same.”
7. How long will it take to kick the squatters ?
One of the objectives of this law is to reduce the time that owners take to recover possession of the property. Thus, the term will be reduced to five days so that, once the demand is admitted, the occupant provides documentation that justifies his occupation, instead of the 10-day period. In addition, it is approved the impossibility of resorting to the car that solves it.If the squatters do not provide documentation, a judgment that is directly enforceable will be issued. That is, you can directly request the launch without having to wait 20 days for it to become firm.”As in any procedure, the judicial rhythm largely determines the time it takes to reach a resolution, although it is not the only one: the practice of notifications and the processing of resources are often elements that also delay long expectations” , regrets María Lorenzo.
8. Are there differences if it is my usual residence or a second one on the beach?
No. Unlike other modifications in mortgage or bankruptcy, this is not subject to whether or not it is the habitual residence of the plaintiff.Only, it must be proven that just before this occupation the plaintiff was in possession or possession of the property of his property, a requirement intrinsic to the legal status of the interdict.
9. Can I hire an agency to take them out?
The possibility exists, but the expert from Chávarri Abogados does not recommend it. For this, he explains that precisely “the figure of the interdict was created with the idea of preventing individuals from taking justice into their own hands”. The Civil Code establishes that, although every possessor has the right to have his property respected, the protection of this right must be protected or restituted by the legally established procedures.
10. When does this measure come into effect?
20 days after its publication in the BOE, that is to say, on July 2, 2018. From that date, it will be possible to go to the courts requesting the launching of the squatters in this way.