Gecko Towers 15.10.20
It may sound like a cute animal, but these creatures are not at all endearing.
An “Okupas” (from the word “okupacion”) is the Spanish expression for a person who seeks to illegally enter and call the property of another, home. They seek out vacant properties, sometimes in very attractive locations, to illegally enter and bar re-entry while they enjoy the amenities the property has to offer.
In English we’d call them a squatter and they have become a fast growing scourge to those who have a vacant property in Spain. The problem has become particularly acute on the Costas where they have been known to act is semi-organized gangs.
According to The Olive Press – an excellent local newspaper – in 2019, Malaga ranked third, behind Madrid and Barcelona, for the number of illegally occupied properties. It further reported that in the same year there were 83,000 properties subject to ‘okupacion’, a six percent increase on 2018.
So what can be done if you find that your thought-to-be-vacant holiday property is in fact being enjoyed by these illegal entrants?
The simple but not very useful answer is that this is potentially a significant problem. We understand that while squatting is technically illegal, the Spanish law does tend to be cast in favour of the squatter and ejecting them legally can be very costly and time consuming. Additionally, but no less alarmingly, there are circumstances when your attempts to remove squatters in an effort to recover your own property may in fact be considered a crime!
There are several lessons that seem relevant in many cases especially where the property is not your primary residence.
To support a criminal action you’ll need to act quickly, some suggest within forty eight hours of the property being broken into, is prudent. Any delay may, apparently, affect the sufficiency of your evidence that the property is required for your use.
Further, it is understood that if the occupation is detected in time, then, with the full backing of the law, you have 48 hours, provided they haven’t changed the locks, to legally eject the squatters. Let’s face it not a task for the feint hearted as those who enter the property illegally with the intention of enjoying all it may have to offer are unlikely to be a push over.
If the criminal procedure is unsuccessful then with effect from June 2018 (law 5/2018) a civil procedure of “Forced Eviction” exists for a speedy eviction based on the “okupa” failing to show they have sufficient legal right to remain. The owner of the property needs to petition the court for an expedited hearing and if the illegal occupant fails to produce sufficient and genuine documentary evidence confirming the legality of their stay, a Judge may grant an eviction order giving the squatter five days to vacate.
Sadly there is no guarantee of success in these cases where evidence produced may cloud the issue. This is particularly relevant if the squatter is in fact a former tenant who the owner granted a short term tenancy to on the basis that they’d pay an agreed rent. Various cases have shown that the tenant is in fact a would-be squatter who after paying perhaps a month’s rent decides to sit out the balance of the tenancy without further payment.
The alternative to a civil case is the more conventional eviction proceedings that can endure for many months and prove costly.
Not entirely surprisingly in some locations reports have been received of “recovery squads” who have been engaged by a property’s owner to “persuade” the illegal occupants to leave. This may include offering them a small sum in cash to relocate. Not surprisingly the illegal solution, offered by these groups may be efficient but, we understand, not cheap; with sums in the region of €10,000 to €20,000 being mentioned.
So what else can you, as a property owner, do?
In addition, to installing alarms and surveillance cameras – and there are many direct to mobile devices on the market meaning that you can pick up the early signs of intrusion from anywhere a WiFi service exists, there is an arguably good case for insurance. There appear to be two types. Firstly there is an insurance that covers the property from occupation of a third party. Usefully these tend to cover the costs of litigation should the unthinkable happen.
An alternative form of insurance that can be taken out if the owner is also a landlord, is a policy that covers the owner for non-payment of rent. I am told that these can be costly but the issuing insurance company will usually conduct background checks on the potential tenant. Hopefully this will reveal if the tenant has any suspicious past that would make then unsuitable to become the owner’s tenant.
There is a generally held belief, like many fast moving situations, that the current state of the law is simply not keeping up with the activities on the ground. Various reports suggest that the Spanish Congress is considering amendments to the law to improve the efficiency of the 48 hour eviction. In addition, it is also considering repealing part of the Penal Code to establish that the offenses committed by the squatters should make them liable on conviction to prison terms of between one to three years.
Should you be interested in discussing the legal process involved in buying a property in the Marbella region, we would be delighted to assist you. Our team of bi-lingual, highly experienced and wholly independent team of Abogados are ready to help you.
Please call me, Mark FR Wilkins, during usual business hours on +34 600 343 917 or, if you prefer, please e-mail me at mark@roslegal.es
Please note that our posts are for general interest. They are no substitute for proper legal advice tailored to your specific circumstances as provided by a qualified Abogado who is experienced in the application of the Spanish Law.
© Mark FR Wilkins 2020 All rights reserved.