Article written by Carmen Giménez – Carmen has been a lawyer since 1984 and a licensed estate agent since 1989. She is the principal of G&G Abogados and specialises in property and banking law. Her first major success in banking law came in 1999 at the Spanish Supreme Court, where she secured the annulment of a mortgage foreclosure.
The entry into force of Organic Law 1/2025, of 2 January, on measures to improve the efficiency of the Public Justice Service, was set to change the rules on choosing the best judicial procedure to recover possession of an occupied home.
Until 3 April 2025, the date it came into effect, the most commonly used procedure remained eviction for precarious possession, despite the existence of two alternative processes that this article will discuss.
Since 3 April 2025, landlords must first attempt to resolve the conflict through the extrajudicial measures set out in the Law. As a result, the eviction procedure for precarious possession can be prolonged, with recovery of the property taking between 30 days and three months.
However, two procedures, due to their summary or “brief” nature, do not require an attempt at out-of-court resolution before filing a lawsuit against squatters.
On one hand, there is the trial for the protection of possession, originally known as “express eviction,” and on the other, the special procedure under Article 41 of the Mortgage Law, which protects registered real rights.
Although both procedures aim to achieve the same outcome – the eviction of occupants without a legal right to remain in the property – they differ in how they are processed, who can use them, and the deadlines for filing a lawsuit.
Trial for protecting possession of the occupied property
The right being protected is the right of possession, not ownership, although in many cases, both rights are held by the same person.
This procedure should be short, without consideringthe significant court delays caused by system overload. The deadline for filing is one year from the date the dwelling is occupied, or possession is disturbed.
A possessor is understood not only as the person who habitually occupies the property but also anyone with the legal right to possess it. This makes the procedure suitable for addressing squatting in second homes.
Before the Court, it must be proven with facts or documents that the claimant holds or enjoys the property and therefore has the right to possess it. The plaintiff’s possession must be shown to be legally protected, continuous, public and stable.
The procedure may be filed exclusively by:
- Natural persons who are legitimate owners or possessors – this can include someone who is not the owner, such as a tenant, borrower or usufructuary
- Non-profit entities with the right to own the property
- Public entities that own or legitimately possess social housing
Owners or possessors who are legal entities or companies are excluded, as they cannot use this type of procedure.
It is not necessary to know the identities of the occupants, and the lawsuit can be filed against unknown persons, notifying whoever is in the property at the time.
The lawsuit may request the immediate return of possession, in which case the Court will require the occupants to provide proof of their right to occupy the property within five days of being notified.
Defendant squatters have a limited defence, as they may only demonstrate that they hold a superior right to occupy and possess the property compared with the plaintiff.
If they fail to justify this, the Court will order eviction and the immediate return of possession, provided the plaintiff has sufficiently proven their right with documentary evidence, except in cases where the squatters are known to be in a situation of social exclusion.
A judgment that upholds the claim allows immediate enforcement, without any waiting period, unlike other judicial proceedings.
This procedure has the particular advantage of making the judgment effective against third-party squatters.
Enforceability against third parties was introduced to prevent a common tactic used by illegal occupants, where, once identified, they would leave the property and be replaced by others.
It is now established that the presence of third-party occupants at the time of eviction does not prevent the subsequent execution of the judgment, even if those occupants were not parties to the trial.
Procedure of Article 41 of the Mortgage Law to protect registered real rights
The right being protected is always a real right registered in the Property Registry, such as ownership or usufruct.
This is a highly conventional procedure, so failure to comply with any of the legal requirements may result in the claim being rejected by the Court.
The reporting deadline is up to 30 years, as it is a real action, and it may be initiated by both natural persons and legal entities, including companies and cooperatives.
Of a summary or “brief” nature, this procedure begins with a claim that must be accompanied by a certificate from the registrar, proving the validity of the entry corresponding to the registered real right without contradiction.
The plaintiff may request that the occupants provide a bond to cover any profits or benefits they have unduly received, any damages caused, and the costs of the proceedings. Additionally, the plaintiff can request measures deemed necessary to ensure the judgment’s effectiveness, which generally include preventing the occupants from transferring the use of the property to others.
If the defendant fails to provide the required bond, they will be unable to respond to or oppose the claim.
As with the previous procedure, the defendant squatter has a very limited defence. If they provide the requested bond, they may respond or oppose the claim only for one of the following reasons:
- Falsification of the Registry certificate or omission of registered rights or conditions that invalidate the claim
- Possession of the property, or enjoyment of the disputed right, through a contract or other direct legal relationship with the current or previous owner or by prescription, provided this does not harm the registered owner
- Proof that the property or right is registered in the defendant’s favour, supported by a certificate from the Property Registry
- Evidence that the property registered is not the one actually possessed by the defendant
The judgment may be appealed within 20 working days. If no appeal is filed, it may be enforced once that period has passed.
