Specialist in property trespass crimes

The crime of usurpation is defined in articles 245 to 247 of the Penal Code, within Title XIII, which regulates crimes against property and against the socioeconomic order.

We are faced with a crime that protects possession, that is, a specific relationship between the owner or legitimate possessor of the property.

The basic criminal modalities of the crime of usurpation of real estate are regulated in article 245 of the Penal Code, and are the following:

• On the one hand, Article 245.1 of the Criminal Code criminalizes the occupation of real estate or the usurpation of a property right using violence or intimidation. This conduct is known as violent occupation of real estate.
• On the other hand, Article 245.2 of the Criminal Code punishes what is known as “non-violent occupation” of real estate . This consists of the unauthorized occupation of another person’s property, dwelling, or building that is not a residence, or remaining in said property against the will of its owner.

The penalty associated with this crime varies depending on the type of crime:

• If we are faced with a trespass committed using violence or intimidation (Article 245.1), the penalty is 1 to 2 years in prison . The length of this sentence is determined based on the benefit obtained and the damage caused.
• In cases of usurpation without violence or intimidation, regulated in article 245.2, the penalty is a fine of 3 to 6 months.

Article 245.2 of the Penal Code classifies nonviolent occupation of real property as an occupation carried out without the use of violence or intimidation. This type of occupation is characterized by the following elements:

• The occupation, without violence or intimidation, of a property, dwelling or building that is not currently the residence of any person, carried out with a certain vocation of permanence.

• The occupation poses a significant risk to the injured party’s possession of the affected property. Therefore, occasional or sporadic occupations, without the intention of permanent occupation, do not constitute a crime.

• The perpetrator lacks a legal title legitimizing such possession. In cases where the active subject was initially authorized to occupy the property, even temporarily or as a squatter, the owner must resort to civil jurisdiction.

• The owner of the property must state his or her intention to oppose occupation. This intention must be express, but it can occur either before or after occupation.

• That the author acts with knowledge of the property being foreign and of the absence of authorization.

Jurisprudence has excluded in certain cases the existence of a crime of usurpation under article 245.2 of the Penal Code:

• Firstly, temporary or occasional occupations without the intention of exercising possessory rights are excluded.

• Likewise, occupations of abandoned and uninhabitable buildings are not a crime.

• Finally, cases in which the property owner grants possession of the property to the owner, whether through a contract or on a precarious basis, are excluded. For example, cases in which the “occupier” is the tenant who stops paying the monthly rent and, despite this, remains in the property and refuses to leave.

In these cases, the affected party must resort to civil proceedings.

In both cases, there is unauthorized access or stay in a property.

However, in the crime of breaking and entering, the property must be a dwelling, meaning a person’s home, an enclosed space where the person conducts their private life and privacy and from which they have the ability to exclude others. On the other hand, in the crime of trespass, the property cannot be a dwelling.

Precisely for this reason, the legal rights protected by these crimes are different: in the case of trespass, the property and possession of the property are protected, while in the case of trespass, the inviolability of the home is guaranteed.