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  • With 'nocturnal and treacherous'. Thus, the Government has introduced a substantial change in the regulations that seeks to paralyze the evictions of vulnerable families during the state of alarm (until May 9). This change, which comes by surprise, comes just a month after activating the ban on evictions.

    Specifically, the Royal Decree-law that has been approved this week to introduce the figure of the vulnerable consumer, published this January 20 in the Official State Gazette (BOE), includes a modification of article 1 bis introduced in the Royal Decree-law 37/2020, endorsed by the Council of Ministers on December 22 and published in the BOE the next day, which also prevents the evictions of squatters who have committed crimes, something that the regulations did not contemplate until now.

    "Article 1 bis introduced in Royal Decree-Law 37/2020, of December 22, on urgent measures to deal with situations of social and economic vulnerability in the field of housing and transport, with The purpose of covering the situations in which the eviction and release procedures affect economically vulnerable people without a housing alternative, even in criminal cases in which the release affects people who lack the title to live in a home. it protects in the exclusive competence of the State attributed by the 6th rule of article 149.1 of the Spanish Constitution, which attributes exclusive competence to the State in matters of procedural legislation ", reads the official document.

    Legal sources and the real estate sector maintain that such a rapid and far-reaching modification "is going to cause great insecurity to investors." And it is that the regulation that was activated last year considered as vulnerable groups the families affected by the coronavirus crisis, those who were already going through economic problems before the pandemic broke out and the tenants without housing title (that is, the squatters), as long as there were circumstances.

    As explained by the Minister of Transport, Mobility and Urban Agenda (Mitma) in the press conference after the Council of Ministers on December 22, the eviction would be paralyzed in the case of people who have occupied homes without violence or violence. intimidation or carry out illegal actions in the property, that their vulnerable condition is proven (for example, that they have dependents or minors in their charge, that they are dependents or are victims of gender violence), and that it is not a home habitual or second residence, nor is it a property assigned to another person. "Personal circumstances and also situations are highly valued," Ábalos said.

    On the other hand, the BOE details that, after the update, "the title and section 1 of article 1 bis are modified, which are worded as follows:

    Article 1 bis. Suspension during the state of alarm of the eviction procedure and releases for economically vulnerable people without a housing alternative in the cases of sections 2, 4 and 7 of article 250.1 of Law 1/2000, of January 7, on Civil Procedure , And in those others in which the eviction brings cause of a criminal procedure ".

    1. From the entry into force of this royal decree-law and until the end of the state of alarm declared by Royal Decree 926/2020, of October 25, which declares the state of alarm to contain the spread of infections caused by SARS-CoV-2, extended by Royal Decree 956/2020, of November 3, in all verbal trials in which the claims referred to in sections 2, 4 and 7 are substantiated .º of article 250.1 of Law 1/2000, of January 7, of Civil Procedure, and in those other criminal proceedings in which the launch of the habitual residence of those people who are living in it without any qualifying title is substantiated. Therefore, the Judge will have the power to suspend the launch until the end of the alarm state. These suspension measures that are established on an extraordinary and temporary basis, will cease to have effect in any case as soon as the state of alarm declared by Royal Decree 926/2020, of October 25, extended by Royal Decree 956/2020, of 3 ends of November".

    Letters b) and c) of section 7 of article 1 bis are modified, which are worded as follows:

    b) When it has occurred in a property owned by a natural or legal person who has transferred it by any valid title in law to a natural person who has his habitual residence or duly accredited second residence there.

    c) When the entry or stay in the property has occurred through intimidation or violence against people ".

    In the previous version, however, this last point literally established "when entering or staying in the property is the consequence of a crime." On the other hand, point b has been added natural person, since the text in the decree of December was as follows, which means expanding the coverage for the small owner: «When it has occurred in a property owned by a legal person that has transferred it by any valid title in law to a natural person who has his habitual residence or duly accredited second residence in him.

    From the Ministry of Transport, Mobility and Urban Agenda (Mitma) they explain that the change of point c (which goes from a consequence of crime to intimidation or violence against people) responds to the objective of providing coverage only and exclusively when squatting (classified as crime) is within one of these three vulnerable groups: that is a victim of gender violence, that has minors under their care or dependents, or that they are dependents. In addition, and in an attempt to temper spirits, they insist that the suspension of proceedings is not automatic, but ultimately depends on the judges, and that it is an extraordinary measure that will only last until May 9, when the alarm state ends.

    They also emphasize that the objective of the Government is that no family experiencing financial difficulties (whether or not they have a rental contract) is left without a home in a situation like the current one. In the case of vulnerable squatters, but the entry or stay in the property occurs with intimidation or violence, the eviction procedure will follow its normal course. In other words, there is no possibility that the judge can stop the eviction.

    Which evictions are stopped and which ones continue

    During the time that the state of alarm lasts (its end is scheduled for May 9), the evictions of vulnerable families and squatters who prove their situation of extreme security (victims of gender violence, dependents or with minors in charge), and provided they have the corresponding report from social services. The only exception is the one contemplated in letter c of paragraph 7 of article 1 bis mentioned above: when the squatting has occurred through intimidation or violence against people.

    Another assumption contemplated by the regulations to be able to evict is when the illegal occupation occurs in a property owned by a natural person, if in said property they have their habitual residence or duly accredited second residence, without prejudice to the number of dwellings of which it is owner.

    The eviction will also continue when there are reasonable indications that the home is being used for illegal activities; When the entry into the home has occurred after the entry into force of the royal decree-law; or when the entry or stay has occurred in public or private property for social housing and the housing has already been assigned to an applicant by the administration or entity that manages said housing.

    In addition, and as is the new wording of the Royal Decree-Law, the last case in which the eviction can take its course is when it has occurred in a property owned by a natural or legal person who has it assigned by any valid title in law to a natural person who has his habitual residence or second residence duly accredited.

    Compensation to owners is maintained

    What remains unchanged is the financial compensation to the affected owners. Specifically, the regulation approved in December contemplates a maximum period of three months for the Administration and public services to find a housing alternative.

    The tenant is the one who must submit the request for postponement and the court will be in charge of requesting a report from the municipal social services to prove the vulnerability of the person, while it is up to the autonomous community to find an alternative.

    In the event that a solution is not achieved, the owner has the right to receive compensation equivalent to the rental price of the area in which the property is located, as established by the Ministry's Housing Price Index, and must be himself who requests it.

    More squatter protection and a knock-on effect

    Industry sources consulted by idealista / news maintain that this amendment "extends the protection to illegal occupation, since it eliminates the possibility of suspending the stoppage of eviction even in the event of a crime. By eliminating the crime restriction, illegal squatters who have committed crimes are protected, legitimizing them and allowing their occupation ", since" with this change, an eviction can only be stopped in the event of violence or intimidation against people . In the vast majority of cases of illegal occupation there is no violence of any kind ”, since they occur in empty buildings or when there is no one in them.

    The same sources insist that this last minute change "increases the legal uncertainty that is being generated around renting, and will generate a so-called effect of illegal occupation that will harm both private and professional owners."

    Something similar is defended by the Madrid Association of Real Estate Companies (AMADEI), which clarifies that the measure “continues the continuation of the illegal occupation of all those properties that have been entered without violence, which is usually the vast majority given that, normally, They are empty as they belong to banks, large funds or promoters in a state of insolvency or illiquidity with pending execution processes ”. Ultimately, the association adds, “illegal squatters who have committed the crime of usurpation in its slightest type are protected, included in art. 245.2 of the Penal Code: Anyone who occupies, without due authorization, a property, dwelling or building of others that does not constitute residence, or stays in them against the will of its owner, will be punished with a fine of three to six months. "

    For Mikel Echavarren, CEO of the Colliers consultancy in Spain, “the inclusion of the protection of the occupants who were immersed in a criminal procedure, in addition to being grotesque, clearly defines the priorities of those who have drafted this clause: protection of the offender versus the protection of the owner. Without being experts in criminal law, we believe that the degree of violation of the fundamental rights of the owners is so great that this provision is likely to violate current legislation ". To sum it up clearly, he adds, "it seems silly to us."

    His opinion coincides with that of AMADEI, which in this sense emphasizes that the modifications made to the regulations "once again detract from the fundamental right to private property, enshrined in art. 33 of the Constitution, for which it is considered that the measure could be declared unconstitutional, especially when it comes to affecting that fundamental right through a royal decree, when art. 53.1 of the Constitution establishes that the exercise of these rights can only be regulated by law and, in any case, respecting their essential content.

    Marta Martín, a lawyer at AM2 Legal, also puts on the table that “the modification of RDL 11/2020 means expanding the prohibition to evict those squatters against whom a criminal procedure has been instituted (for the crime of usurpation, because the raid would remain outside) or against those who have entered a home without using violence or intimidation.

    But the lawyer goes a step further and assures that, in her opinion, “entering someone else's house is already a form of violence. Just as entering to rob someone else's house with the keys stolen or lost by their owner is considered a robbery with force, entering that same house to stay in it, even if no physical violence is used, should be considered violence. There is violence from the moment the intruder enters someone else's home without the owner's consent and remains in that home against his or her will.

    In short, she emphasizes, “this modification of RDL 11/2020 is one more turn of the screw against private property and an invitation to squat. Once again, the owners are being made to pay for the Administration's inability to provide social housing to vulnerable people, and the message is being launched that whoever owns someone else's home is not only not going to be convicted of any crime or to pay not one euro to the owner, but they are going to prevent the owner from throwing him out. It is "an obvious call effect", sentence the lawyer.

    For the Rent Negotiating Agency (ANA), the most striking thing is that the modification encourages the illegal occupation of empty houses. Thus, he explains, "the Government opens the door to the occupation of empty homes of large homeowners, individuals or legal entities, by removing the figure of the crime, such as usurpation, so that a judge can suspend the launch, as long as there are no people inside it and in the specific requirements that the vulnerable tenant must meet and which is detailed in the Law ”.

    It also emphasizes that now “the judge can suspend an eviction, in the event that, for example, a crime of encroachment occurs, the home is empty, is owned by a large homeowner (natural or legal person), and that the occupants comply with the vulnerability requirements established by the Royal Decree to suspend evictions and tenancies in the case of economically vulnerable people without a housing alternative, a fact that prior to this change, the Judge had no possibility of suspending. Therefore, he sums up, “it can be a call to occupy homes with a specific profile of occupants and that meet certain characteristics, and possibly it is an advance or warning about the intentions of a part of the Government to expropriate empty homes ».

    For its part, the Association of Rental Home Owners (ASVAL) believes that the modification of the December decree "is one more step towards the protection of illegal occupation that generates serious social and economic problems." The body insists that “Spain has become the only country in Europe that protects illegal occupation. Measures such as this generate a so-called effect with serious consequences and increase the legal uncertainty that is causing regulatory intervention in matters of rent, and that affects the real estate heritage of Spaniards "and ruling that" in addition to increasing the existing social alarm around This illegal phenomenon has very negative effects on owners, neighborhood communities, neighborhoods and the Administrations themselves.

    The Association of Construction Promoters of Spain (APCEspaña) has also ruled on the regulatory amendment. In a joint statement with ASVAL, he emphasizes that "the modification incorporated without prior notice, just three weeks after the approval of the original Decree, is one more step towards the protection of illegal occupation that generates serious social and economic problems." The document also points out that "the necessary protection of the vulnerable in exceptional circumstances should not be confused, much less equated, with endorsing the illegal occupation from the Public Administration."

    The experts consulted also highlight that this stoppage, in addition to being a brake on the rental market, could lengthen the period for the owner to recover his home. And they also doubt how the compensation promised to the affected owners will be articulated.

    In this sense, the association of Madrid real estate companies insists that “if a judicial procedure of this type can last for years, the affected owners may see the possibility of recovering their properties extended even more if the judge, after this governmental measure, decides suspend the launches of illegal squatters without a housing solution ", while the lawyer from AM2 Legal details that" although it is true that this Royal Decree-law introduces compensation in favor of owners who cannot evict, it remains to be seen how it will be calculated and, above all, how that compensation will be paid.

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