Someone is living in your property and not paying rent: are they a squatter or a defaulter? The key lies in how they gained access to the property. In this article, we explain the differences between a tenant in arrears and a squatter in Spain.
The difference between a tenant in arrears and a squatter
The key to telling the difference between a tenant in arrears and a squatter is the rental contract.
What is a tenant in arrears?
A tenant in arrears is a person who, after entering a rented flat, fails to pay the rent, utilities or everything. This person entered the flat with a formal rental contract. Even if the tenant stops paying the rent or the bills, the property owner will not be able to recover the property until a judge decides to evict the defaulter.
From the first month that the tenant stops paying the rent, he/she becomes a defaulter. The same applies to tenants who, at the end of the rental contract, remain in the flat against the landlord's will.
What is a squatter?
A squatter is a person who enters a property and stays in it without the consent of the owner. Unlike tenants in arrears, squatters enter a house without a rental contract.
Squatting per se does not appear in the Spanish legal framework. However, there are two terms that refer to it: usurpation and trespassing.
- Usurpation: this is the offence that occurs when one or more people enter an uninhabited property and take up residence in it without the consent or against the will of its owners. Since it is not inhabited, the penalties are less severe than for trespassing.
- Trespassing: in this case, a person occupies an inhabited house or building and takes up residence in it without the owner's permission, which violates the owner's privacy and carries penalties including imprisonment.
Express eviction law
"There is a myth that if the occupants have been in the house for less than 48 hours, it is a flagrant offence and they can be evicted without further consideration. However, this statement has no legal basis (it does not appear in the Criminal Code or the Criminal Procedure Act)," says César García, director of Acounsel Abogados.
For squatters to be evicted immediately, they must be caught in the act, for example, through a security camera or alarm. In other words, they must be caught committing the crime before they have time to take possession of the property. At that point, the landlord can call the police to evict them.
In reality, there is no such thing as an express eviction that will remove squatters or tenants in arrears who have possession of the property in 48 hours. Depending on how they have entered the flat, one eviction process or another will have to be initiated.
If the landlord has to deal with a tenant in arrears, eviction proceedings for non-payment will have to be initiated. If, on the other hand, there are squatters in the house, eviction without a contract will have to be initiated.
When is a person considered a squatter?
A squatter is a person who enters and settles in a house or property without the owner's permission or knowledge. In other words, he or she enters without any kind of contract or agreement.
Squatting is a crime that can lead to prison sentences and there is no time limit for squatting. It is an offence and the penalties for such depend on how the squatter entered the property (for example, with violence or intimidation) and whether the property is considered a dwelling or not. In Spain, the average time to evict a squatter is eight to 12 months.
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