The First Section of the Provincial Court of Las Palmas has acquitted two women who were initially convicted of minor crimes of usurpation for occupying two homes owned by the Company for the Management of Assets Proceeding from Banking Restructuring (Sareb) in Lanzarote. The court concludes that the commercial entity cannot invoke their eviction through criminal proceedings as it has shown "no interest" in its property for years.
Court of Instruction number 3 of Arrecife convicted both defendants in two judgments issued this year, one in February and the other in June, after Sareb reported them through criminal proceedings, ordering them to vacate the respective homes. In addition, one of them was fined 360 euros and the other 120. However, both appealed the corresponding judgments, managing to have them revoked.
In two practically identical rulings issued last July, the First Section of the Provincial Court recalls that the criminal figure of real estate usurpation was introduced by the Criminal Code of 1995 "to respond to the social phenomenon of the so-called 'squatters', a movement that, apart from its ideological connotations, had been characterized by the occupation of properties, generally in large cities, that were not being used by their owners, to use them as a residence or meeting place, with a communal structure that tried to separate ownership from possession, focusing on the social function of the former".
Abandonment of their powers
However, the court points out that in order to resort to criminal proceedings, "in addition to the vocation of permanence" and that "the property is not the owner's home", it is necessary "that the owner has not abandoned their powers".
In this regard, it explains that this "should not be understood as mere passivity or the passage of a more or less long period of time in which acts of possession or enjoyment of the thing are not carried out, but that it has left it in such a situation that its abandonment is presumably presumed". "This is because the legal right protected by the criminal law, real estate property, cannot reach those who neither adopt the minimum precautions required to avoid dispossession, nor those who show complete disinterest in the thing, since the Civil Code itself admits as a way of losing possession its abandonment", it adds.
"It is, in short, to verify whether the property, in the specific case, deserves the protection provided by criminal law or whether the complete neglect or disinterest of the injured party determines that it is to the civil route to which it must resort to protect its property", indicates the First Section of the Provincial Court.
"The property in question has been owned by a real estate asset company since 2013, without in any way proving either what its condition was then, or what its vicissitudes have been during so many years, whether it has been renting it having the appropriate conditions to allocate it to its inherent use of housing and, above all, if in some way it has been exercising during all this period of time material acts that imply interest in its use that go beyond the obviousness of the economic interest in the real estate investment", the court points out in both judgments.
Even "it is ignored", adds the Court, which states that no evidence has been provided about "what has been happening" with these properties from 2013 until it reports the occupations in 2018, without even providing "a piece of information about when it was occupied and what steps it has taken regarding that property".
Considers that the civil route should be used
With such background, the court argues that "basing the conviction on the mere recognition by the accused of the fact of the occupation would go beyond the mere civil offense" and therefore admits the appeals of the two defendants and acquits them of the minor crime of real estate usurpation to which they had been convicted.
"This type of crime cannot become a legal instrument to recover possession of properties in a situation of dominical neglect", concludes the court, which considers that "the civil jurisdictional route should be used to achieve the claim".
