The peaceful occupation of uninhabited houses in an act of social disobedience to an unjust model of distribution of wealth that deprives more and more people of a dignified life. The demand for the decriminalization of this type of occupation is another step towards social justice.
This August the media have bombarded us with alarmist news about the growing occupation of inhabited homes, giving relevance to a phenomenon that until now has been a minority and getting the most conservative and reactionary voices to clamor for a supposed “anti-occupation law. On the reasons behind this campaign, I recommend reading Emmanuel Rodríguez; it is up to me to convince those who read me that the only legitimate debate on this issue is, at present, to demand the decriminalization of the occupation.
The crime of usurpation (occupation) consists of taking peaceful possession, without violence or intimidation, of an uninhabited property without the consent of the owner and with the will to live in it continuously. Until 1995 this type of occupation was not a crime. If someone occupied an abandoned property to live in, the owner could go to civil court and regain possession of his or her property. The occupier was evicted but did not face any penalty or criminal record. This civil procedure to regaining possession still exists, even improved since 2018, but the crime of trespassing remains even if it is not necessary for the owner to regain the property. The criminalisation of occupation, together with the reform of the urban leasing law and the decriminalisation of usury, had the political aim of making mortgage indebtedness the only secure option for exercising the right to housing.
In a society where the public authorities do not guarantee the exercise of the right to decent housing for all and where unemployment and income shortages are structural, the criminalisation of the peaceful occupation of uninhabited housing is a form of cruelty to the poor that only leads to the criminalisation of poverty and greater social exclusion.
In order to address the debate on decriminalisation of occupation and to curb the voices that interestingly criminalise poverty and fuel hatred of the poor, I believe it is necessary to know some issues about the crime of occupation to understand why it need not exist.
1. The crime of occupation occurs when someone uses an uninhabited property to live in that the owner never uses it. The crime of occupation does not occur in a property that is considered to be a dwelling, i.e. an inhabited home. The temporary nature of the inhabitants is not a determining factor in whether or not it is considered a dwelling. The second residence constitutes a dwelling and, therefore, cannot be the object of peaceful occupation, even if it is empty for long periods of time. In this case it would be an offence to break and enter, which is provided for in the Criminal Code and has an urgent procedure for the eviction of the breakers. To avoid this situation, it is not necessary to have the crime of occupation and much less a new “anti-occupation law”.
2. If the property being occupied, in addition to being uninhabited – it is not even sporadically a home – is abandoned, the occupier should not be considered to be committing a crime. An abandoned property has completely lost its social function. Jurisprudence has considered that there are signs of abandonment in dilapidated properties, without closures or living conditions such as light and water. Whoever occupies it can be evicted by civil means, but not criminally punished.
3. The use of an uninhabited property in a sporadic way is also not considered by the jurisprudence as a crime of occupation. The most common example is the homeless person who sleeps a few nights in an uninhabited or abandoned house. This exception could also apply to someone who visits an occupied property on a regular basis without wanting to stay in it as a home. To understand this exception, it is necessary to clarify that the crime of occupation only deprives the owner of possession of the property but not of its ownership. The owner is deprived of the use of his property while the occupant remains in it but still has the right to the property: he can sell it or mortgage it, for example. For this reason, the majority doctrine understands that the crime of occupation is a minor crime, because it only attacks possession and not the property. The person who makes use of an uninhabited dwelling on time is not depriving the owner of its possession and therefore does not deserve criminal punishment.
4. If the person or the family who is occupying is in a state of need and the occupation is the only way they can access a roof, no penalty should be imposed or at least it should be considered as a mitigating factor. For this exception to be made, case law requires that all possible avenues of access to housing be exhausted before occupation. Those of us who defend people who are forced to occupy by necessity fight for the courts to apply these exemptions from necessity (art. 20.5 of the C.P) or those exemptions from exercising the legitimate right to housing through occupation when there is no other way available (art. 20.7 of the C.P). These legal battles are an attempt to decriminalise the peaceful occupation of housing at least on a case by case basis. Success in the courts will increase as the demand for the decriminalisation of occupation gains social support.
In conclusion, the owner is already protected by the crime of breaking and entering in the case of occupation of an inhabited dwelling, and has a civil court in the case of occupation of an uninhabited dwelling. The fact that since 1995 there has been a crime of occupation which punishes those who peacefully occupy uninhabited housing only serves to sow fear and further impoverish the poorest. In a society unable to guarantee the right to housing for all, the peaceful occupation of uninhabited property is a self-protection of the legitimate right to housing that does not merit criminal prosecution, especially when the owner can regain possession in the civil courts.
We know how difficult it is at this time to add voices to the discourse on the decriminalisation of occupation, since it implies the questioning of the sacred concept of private property, which is currently completely dissociated from any social purpose other than the enrichment of the owner. These days we hear voices in favour of the right of property owners to have as many abandoned properties as they want and even the “legitimate right” of investment funds to speculate, even if this means a progressive increase in the price of housing; even if it makes it more and more difficult for more people to exercise their right to housing and this means the massive violation of fundamental rights such as the right to life, integrity, health or privacy. Demanding that property is subordinated to the common good and to a social purpose is a concept that is radically opposed to neo-liberal logics. It consists in defending that existing goods should be aimed at guaranteeing a dignified life for all people, relegating the enrichment of a few to a secondary position.
The peaceful occupation of uninhabited housing is an act of social disobedience to an unjust model of wealth distribution that deprives more and more people of a dignified life. The demand for the decriminalisation of this type of occupation is a further step towards social justice.
Directory of squats in the Iberian Peninsula:
Spanish State: https://radar.squat.net/en/groups/country/ES/squated/squat
Catalonia: https://radar.squat.net/en/groups/country/XC/squated/squat
Basque Country: https://radar.squat.net/en/groups/country/XE/squated/squat
Directory of groups (social centers, collectives, squats) in the Iberian Peninsula:
Spanish State: https://radar.squat.net/en/groups/country/ES
Catalonia: https://radar.squat.net/en/groups/country/XC
Basque Country: https://radar.squat.net/en/groups/country/XE
Events in the Iberian Peninsula:
Spanish State: : https://radar.squat.net/en/events/country/ES
Catalonia: https://radar.squat.net/en/events/country/XC
Basque Country: https://radar.squat.net/en/events/country/XE
Photo: graffiti supporting the squatting, in the neighborhood of La Macarena, in Seville.
