First, we must distinguish between the two ways to evict someone occupying a residence that he/she is not entitled to possess. The first way is through civil proceedings and the second, through criminal proceedings, provided that criminal activity has taken place.
Civil proceedings are limited to those cases in which the intention is to evict persons who were initially legitimate possessors and who subsequently lost this right, for example, in the case of non-payment of rent.
Criminal proceedings correspond if the actions taken by the “squatters” are illegal, where intent is necessary, that is, that such person is intending to possess a residence when he/she knows that he/she lacks the right justifying access to said property. For this reason, when the person in possession of the property believes that he/she is entitled or the right possessed is sufficient, we are not dealing with a criminal offence, but a civil wrong (ilícito civil). The former case, where intent is involved, would either fall under the offence of misappropriation (delito de usurpación), or under the offence of breaking and entering (delito de allanamiento de morada). The first is included in Article 245 of the Spanish Criminal Code and is distinguished from the second not only in the punishment, which is more severe for breaking and entering, but also because misappropriation is performed on a property which is not a private dwelling, while in the breaking and entering offence of Article 202 of the Criminal Code, “squatting” is performed on a property which is a private dwelling, that is, where private activities take place. Here the General State Prosecution, in pre-trial proceedings on 15 September 2020, determined that so-called vacation homes or seasonal residences would be considered as private dwellings “provided that in them, albeit sporadically, the private life of their legitimate possessors is carried out.”
In any case, both offences may be reported directly to the police or to the court, although the processing and procedure to be followed will be different depending on the circumstances in each case.