Do you have to be afraid of ocupas? Not if you choose the right property

Who are the ocupas?

These are people who illegally occupy apartments or houses that are temporarily or permanently vacated.

I would like to emphasize right away a fact that is often omitted in the internet discussion about ocupas: wild tenants usually do not occupy private properties, but those owned by banks or large companies (e.g. investment funds).

So we talk mostly about houses that have been empty for many months, because the bank (after taking them over from defaulting owners) does not sell or rent them. There is no shortage of such properties in Spain. Yes, there are cases where wild tenants occupy property while private landlords are absent, but these situations are less common. Ocupas are usually well informed about the legal status of a property and it is a much safer option for them to seize the property of a bank or company than to risk a quick return of the private owner and an open conflict.

Where did the ocupas phenomenon come from?

According to experts, its roots go back to anarchist and anti-capitalist movements, although nowadays it is much more often the result of poverty or simply a way to… make some money.

Remember the famous spaghetti western "The Good, The Bad and The Ugly" starring Clint Eastwood? If so, you should like the way Spanish Property Insight has characterized wild tenants. Its experts divided the ocupas into: good – desperate, with nowhere to live, but not a threat to anyone; bad – people who use squatters to extort money from the owners; ugly – people who share left-wing, anti-capitalist views and do not believe in private property.

Ocupas is a big problem, but mainly in Catalonia

Let me quote a few figures that show the scale of the ocupas phenomenon. 2015 was the year when the Spanish administration recorded for the first time more accurately the illegal seizures of real estate. At that time, over 10.3 thousands of them were recorded throughout the country. In 2020, there were 14.7 thousand such complaints. This represents an increase of about 40% in five years. A lot, but looking at the dynamics of the phenomenon in recent years, it can be seen that the trend is weakening: comparing 2020 to 2019, we will see that there were only 2.7% complaints more.

Reading about the ocupas in the media, one gets the impression that the problem of wild tenants applies to the whole of Spain. Meanwhile, it is visible primarily in Catalonia. According to data from the Ministry of the Interior, in 2015, complaints from this region accounted for 38% all submissions. In 2020, it was already 42%.

During the first nine months of last year, 13.4 thousands wild takeovers were reported and the lion's share of them was again linked to Catalonia. For comparison, in Madrid, which is also at the forefront of unlawful foreclosures, there are five times less such sad stories on average.

Ocupas and Spanish law

Of course, unlawful seizure of property is a criminal offense in Spain. There are two types of such activities: burglary and seizure, and usurpation. Here is a brief explanation and the legal basis

Burglary and seizure crime – this is the seizure of real estate despite the fact that someone regularly lives there. Importantly, second homes or holiday homes are considered "residential" even if the owner only goes there once a year.

Art. 202 of the Criminal Code:
- Who, without living in it, enters someone else's apartment or stays in it against the will of its residents, shall be subject to the penalty of deprivation of liberty for a term of between six months and two years;
- If the seizure was carried out using violence or intimidation, the offense is punishable by imprisonment for one to four years and a fine for six to twelve months.
  
The offense of usurpation – appropriation of real estate owned by someone in a situation where the house or apartment is not a place of residence.

Article 245 of the Criminal Code distinguishes between two types of this offense:
- Whoever without authorization occupies real estate, apartment or building belonging to another person and does not constitute his place of residence, or who remains in them against the will of the owner, is subject to a fine of three to six months;
- Whoever by violence or intimidation seizes real estate or usurps someone else's right to real estate, shall, in addition to penalties for the committed violence, be punished by imprisonment from one to two years.

What to do if there are ocupas in the property?

If we were unlucky and our property became the object of interest for uninvited guests, it is recommended to enter the civil road in the first place (criminal law is the last step in Spanish legislation). Importantly, thanks to the amendment to the Act on Civil

Procedure introduced in 2018, an unwanted tenant can be removed faster. The key tool is the so-called express eviction. It is mentioned in article 441.1 bis of the Civil Code. It should be noted, however, that the aforementioned act applies only to real estate owners who are natural persons. It does not apply to banks or companies to which the unlucky property belongs.

What is express eviction? After reporting the illegal takeover to the police, ocupas are required to prove their ownership or justify their stay in the property within 5 days. If they fail to do so within the time limit set, the court may already decide to evict them. The time of closing the case depends, of course, on the number of cases considered in the appropriate court at a given moment. Sometimes it takes several months, but it is still the fastest way to get rid of ocupas today, if the landlord manages to identify such a tenant (assuming, of course, that we do not want to – acting outside the law – employ one of the companies who call themselves “ocupas’ removals”).

How to protect your property against ocupas?

The ocupas phenomenon may, for obvious reasons, arouse emotions among investors, but it is worth approaching this topic calmly. The key is to choose the right property and its well-thought-out management. If these processes are properly approached, the risk of uninvited guests will be minimal. 

Here are some tips on how to protect your property from ocupas:           

• Invest in the right neighborhood – holiday properties bought by foreigners are usually located in gated and often guarded estates, so it is worth looking in such neighborhoods;
• Work with a proven broker – s/he will advise you on where to buy a property and which locations are better to avoid (the ocupas problem mainly concerns large cities);
• Rent your property when you are away – if you come to your Spanish home only a few times a year during your holidays, have a friend real estate agency rent it while you are away (security combined with earnings);
• Contact with your neighbors – it is worth asking the owners of nearby houses to be vigilant and to check your property when you are away;
• Take care of security doors, cameras and the alarm system – these are proven solutions that effectively deter bystanders. If it is possible, it is also worth investing in a system that turns the lights on and off, thanks to which the property will give the impression of being inhabited;
• Do not post photos of your real estate on social media – social networks can be a great source of information for ocupas, so it's better not to publish sensitive information or reveal that, for example, we are going on vacation. Of course, if the property is to be rented, it will be impossible without online advertisements, but in this case, no one will risk taking the house. Renting means frequent visits by an agent, potential tenants, cleaning crew etc., and ocupas do not like that.

I hope that reading this text "disenchanted" you about the ocupas. It is worth knowing the above tips, although as I said before, the problem of uninvited tenants most often concerns uninhabited real estate owned by banks. Spanish law – although far from perfect – provides tools for solving this type of problem. It is worth remembering when you next time read in internet some “spooky” stories about ocupas.