Breaking and Entering Lawyers in Barcelona

It is a closed space where a person develops their private life and their own intimacy and where they have the possibility of excluding other people from said reserved space.

According to the jurisprudence of our courts, the following are considered dwellings: a second home or residence, a motorhome, hotel rooms, a ship’s cabin, or a squatted house, among others.

However, according to jurisprudence, the following are not considered a dwelling: a warehouse, a basement or storage room intended for storing objects and not directly connected to the dwelling, an uninhabited dwelling, among others.

The consent of the resident, who is the holder of the right to privacy, excludes the crime of breaking and entering.

However, as specialists in home invasion crimes , we must warn that consent can be revoked at any time and, in that case, if the subject remains in the home against the will of the person who initially gave consent, but now asks them to leave, then they will still commit the crime of home invasion.

And this is because, as we have explained, remaining inside another person’s home against the consent of the resident constitutes the crime of breaking and entering.

When we talk about the active subject, we are referring to those who may be the perpetrators of a crime of breaking and entering.

Any person who is not a resident, that is, who does not live in the home, may be the perpetrator of this crime.

For example, it is common for this crime to be committed by the ex-partner himself or herself, who, once the relationship has ended, the property has been divided, or having been forced to leave the marital home, enters the home without authorization or prior notice with a copy of the keys that was made at the time without the consent of the resident.

In this case, we are referring to people who may be victims of a crime of breaking and entering.

Specifically, only residents can be considered as holders of the right to privacy.

For example, a tenant may be the victim of a crime of breaking and entering committed by a landlord if the landlord enters or remains in the tenant’s home without the landlord’s consent.

The basic type of crime is punishable by imprisonment from six months to two years.

However, if violence or intimidation was used to enter another person’s home, the penalty will be one to four years in prison and a fine of six to twelve months.

Furthermore, Article 203 of the Criminal Code establishes other penalties for cases in which the victim of a home invasion is a professional office or business, a public or private legal entity, a professional office or business, or an establishment or premises open to the public.

Specifically, when the residence of a legal entity is entered, a prison sentence of six months to one year and a fine of six to ten months will be imposed.

In cases where, outside of opening hours, the person remains against the will of the owner, at the address of a public or private legal entity, professional office or office, or in a commercial establishment or premises open to the public, a penalty of one to three months’ fine shall be imposed.

If the above conduct on the domicile of a public or private legal entity, professional office or office, or in a commercial establishment or premises open to the public, is carried out with violence or intimidation, the penalty to be imposed will be six months to three years in prison .

The answer to this question will depend on the type of home invasion we are dealing with.

In the case of the first type of home invasion—entering another person’s dwelling against the occupant’s will—both legal doctrine and the majority of our courts’ case law establish that it is not necessary for the occupant to expressly state their opposition to the entry of a third party into their home. That is, this lack of will can be implied.

For example, the fact that a home door is open cannot, in itself, be interpreted as the resident’s consent to any third party entering.

However, if we are faced with the second type of breaking and entering – remaining inside another person’s dwelling, which was initially entered with the consent of the occupant when the latter requests the person to leave – it is required that the occupant’s contrary intention be expressly stated.

In the case where there are several residents and, therefore, holders of the right to privacy, the majority doctrine establishes that the valid consent of one of them implies the non-existence of a crime, provided that the lack of consent of the others has not been expressly stated in this regard.

The answer is no. A crime is only committed if the act is committed knowingly, knowing that the person entering another’s home without the consent of anyone who can grant it and without any reason that can justify such entry.

The crime of breaking and entering is a crime that can only be committed intentionally.

Therefore, let’s imagine the case where a person mistakenly believes they are in a communal garden area with an open door, when in fact they are in someone else’s home. In this case, if they realize their mistake, if they immediately leave the home, there would be no crime.

The main difference is that in cases of squatting, the occupation takes place on a property that is not someone’s residence, that is, it is not a place where the owner of the residence carries out activities. This would be the case, for example, with abandoned homes.

Whereas, in a home invasion, the address must constitute a residence. It may not be your habitual residence, but it must be considered a residence in order to be charged with this crime, rather than with occupation.

The penalties for trespassing are considerably lower than those for breaking and entering.

For example, there would be no crime if entering another’s home is justified to prevent a crime in progress, or in those cases where entering another’s home is carried out in the exercise of a duty or a right.

Article 204 of the Penal Code punishes any authority or public official who, except in cases where the law permits it and without any legal cause, enters another’s home or remains there against the will of the owner.

In these cases, the imposition of prison sentences in the upper half and absolute disqualification from six to twelve years is contemplated.

However, as an expert lawyer in home invasions , we must remember that the Criminal Procedure Law establishes a series of cases in which police officers may enter a home or residence against the will of its owner.

Specifically, the following may access the home without committing a crime:

1. In cases of flagrant crimes : That is, when the crime is being committed or has been committed moments before and they know that the offender is hiding inside the home or that objects or instruments of the crime are kept inside.

There is also an urgent need for police intervention to prevent the crime from continuing or to arrest the offender if there is a risk of flight or destruction of evidence.

1. By judicial authorization: Cases in which a judge, through a resolution, authorizes police officers to enter a specific home.