Right of use and trespassing between co-owners


04 / Jun

It is common, joint ownership of a house with a brother, the father’s second wife, or with an ex-partner. If the relationship with the other owner is complicated, all kinds of problems arise. Both want to use the house at the same time, or they disagree about the sale or rental.

In this article we discuss the rights of use. What do you do in the situation when you arrive at the door and the other owner turns out to be using the property? Can you be denied access to the property? Or can you simply enter the property?

Rights of the owners

Ownership rights referring to joint property are governed by Article 394 and follow on from the Spanish Civil Code, which states that ‘each participant may use the joint property provided that it is used in a manner which does not harm the interests of the community or prevent joint users from using it in accordance with their rights’. Therefore, any co-owner – always respecting the limits – may serve and make the best use of the joint property, no matter the share they possess in the property.

This right is an absolute right, but will apply as long as the nature of the property allows it (indivisible or not) and will depend on the personal and other circumstances of the property.

The Spanish Supreme Court has ruled that the exclusive use of the property by only one of the co-owners is unlawful and can lead to eviction on the grounds of ‘squatting’. Therefore, someone cannot occupy the property permanently and with an exclusive character.

When personal circumstances prevent or discourage the simultaneous use by all co-owners, the Spanish Supreme Court has determined that a fair manner of alternating use must be established: “the application of alternating exclusive use for successive and recurring periods will be considered as a fair manner applicable to cases of occupants of dwellings where joint or shared use is not possible or advisable or when the community or a resident insists on it”.

In any case, if a co-owner considers that the exclusive use of the property by another co-owner violates his property rights, he can claim his right of use of the communal dwelling, or else request payment of rent for the exclusive use of the other co-owner. From that moment on originates the obligation to pay compensation to the co-owner who has no possession of the property. If such a right is not invoked by the other owners, the exclusive use by a co-owner is considered ‘tolerated’ or ‘allowed’ and there is no claim to compensation.

What it comes down to is that as long as a co-owner occupies the property exclusively without being disturbed in that use by the other owners, there is a question of tolerance. As soon as the occupying co-owner is addressed by the other co-owner, this compensation is due.


What if a co-owner illegally occupies the property, is addressed by the other co-owner, but does not make any effort to end the occupation or pay compensation. Can the other co-owner do the same, just occupy the house as soon as the other is not in the house for a while?

As mentioned before, the occupier can only be evicted from the house by the judge. If you take the right into your own hands, you have a chance to be prosecuted for trespassing.

In Spain, trespassing is enshrined in article 202 of the Penal Code, which defines it as a crime on the grounds of entering or staying in a house without permission and against the will of the occupant. The law does not speak of the will of the owner, but of the occupant.

The literal text is as follows:
1. Anyone who enters or stays in another person’s dwelling without permission and against the will of the occupant shall be liable to a term of imprisonment ranging from six months to two years.
2. If the act is carried out by force or intimidation, the sentence imposed shall be one to four years’ imprisonment plus six to twelve months’ imprisonment.

In other words, there are two types of behaviour that can lead to the conviction of a crime of trespassing:

  • Entering someone else’s home without permission and against the will of the occupant.
  • Staying in the house against the will of the occupant.

The heart of this crime lies in what is meant by “home”. According to the ‘Real Academia Española’ (Spanish Royal Academy, responsible for language regulation), a dwelling is defined as “an enclosed space separated from the outside world in which private life takes place, intended for accommodation and use, although not necessarily permanent”. In other words, it is the place where the person resides (not necessarily permanent) and where his private life takes place.

Although this concept is practical rather than legal, the Spanish Constitutional Court gives us a more concrete concept by pointing out that it is “the space in which the individual is free from social customs and social conventions and in which he occupies his most intimate freedom”.

What is really protected according to the doctrine (and in my opinion) is not so much the inviolability of the walls that make up the dwelling as the privacy of the occupant, i.e. what takes place within those walls.

The crime of trespassing is merely an act. That is to say, there is no need to prove that the privacy of the occupant has been violated. It is sufficient if the perpetrator has entered the house without permission or, once inside, refuses to leave the house when asked to do so by the occupant.

We should also emphasize that in committing this crime it is a requirement that the person committing the crime does not reside in the home (either usual nor occasional). This means, and in principle, that co-inhabitants cannot commit trespass. This may seem obvious, but in practice it can cause problems.

What happens, for example, in cases where a resident does not want to share the house with others? Because the house is sanctimonious, one of the co-inhabitants cannot evict another co-inhabitant. However, there are situations in which cohabitation can no longer continue. A modern example is that of domestic violence. In this case, the victim’s situation may require the suspect or attacker to stay away from the family home. For these situations, the legal system offers certain solutions.

And what happens in cases where, for example, two housemates have to decide to admit a third person to the house. In such situations, the sanctity of the home must lead to the priority being given to the interests of the occupant who wishes to keep the “visitor” outside the home. Even if initial permission has been given to the third party to stay in the house, if the cohabitation does not function, the third party may be required to leave the house if one of the two original co-occupants requires so. Refusal by the third party may lead to a conviction for trespassing.


The question we ask ourselves on this point (epicentre of this article) is: if a co-owner occupies the house with the intention of using the property exclusively as a home, can he deny access to the other co-owner?

In my opinion he can, on the basis of the protection offered by the crime of trespassing to protect the privacy of the occupying co-owner. The right to privacy in your home, regardless of who owns it, and even the holiday home, takes precedence over property rights. This right is endorsed by the doctrine of the Spanish Supreme Court, which has ruled that the best solution is to apply a system of exclusive use for successive and recurring periods.

In our experience, the theory leads to some problems in practice. The police are not always prepared to take a possible charge of housebreaking seriously if it is directed against the co-owner. Nevertheless, it should be kept in mind that the police are obliged to deal with this complaint. This obligation is regulated by law. The court is the only competent authority that decides whether or not an offence is lawful or punishable. The police have a duty to initiate the investigation and put the case in the hands of the judge.

María Dolores García Santos

(Translation from Spanish: Roeland van Passel)