The Usurpation

We often wonder which procedure would be more useful when it comes to recovering possession of our property, whether we should use the procedure for the crime of the usurpation, which would be a criminal procedure or, on the contrary, we should use the civil procedure, which would be the eviction procedure.

First of all, we must bear in mind that the crime of usurpation requires, as established in article 245.2 of the Penal Code, that "whoever occupies, without due authorisation, another's property, dwelling or building that does not constitute a dwelling, or stays in it against the will of its owner, will be punished with a fine of three to six months". Well, as we can see, the requirements for this offence to exist are that it is occupied without due authorisation, that it does not constitute a dwelling (i.e. habitual residence), and that it is against the will of the owner.

In the event that there is authorisation from the owner, or the owner's authorisation has expired, we will be faced with an eviction procedure, which would go through civil proceedings, a different procedure to the one we are dealing with here.

However, as established in articles 245, 246 and 247 of the aforementioned legal text, not only real estate and private property can be involved, but also movable and public property, as established in article 247, which speaks of "whoever, without being authorised, diverts public or private water from its course [...]".

Therefore, to conclude with the study of usurpation, we have to say that the key in this case is the authorisation by the legitimate owner to carry out the acts that the other party considers necessary, since in the absence of this authorisation, the offence of usurpation would be committed.