Is breaking and entering the same as housebreaking?

There are some offences specified in our Criminal Code which, as they are closely related conceptually, are difficult to distinguish. One of the clearest cases that we can find is that of breaking and entering and burglary. In order that, from now on, you will be clearer about the differences between the two, we would like to provide you with this article.

Are the offences of burglary and housebreaking synonymous?

The answer is that they are not. Although, on some occasions, some people may tend to confuse them, the truth is that not only do they have different terminology, but they also have a specific legal meaning and carry different penalties. As if that were not enough, they are defined in different articles of the Penal Code.

What is breaking and entering?

Breaking and entering is specified as a crime in article 202 of Organic Law 10/1995, of 23 November, of the Criminal Code. This is the first of the chapter dedicated to dwellings, establishments open to the public and the domicile of legal persons.

Specifically, this article defines breaking and entering as the action, by a private individual, of entering a dwelling other than his own or remaining inside it against the will of its inhabitant, provided that he does not live or reside in it. In this sense, the specified penalty is imprisonment and ranges from six months to two years.

The second section of this article specifies that, if the break-in is carried out with intimidation and/or violence, the prison sentence will range from one to four years, to which a fine of between six and twelve months must be added.

It should also be noted that this offence is applicable to premises open to the public and to the homes of legal persons. In this sense, the offence would be imputable whenever the private individual accesses such establishments or residences against the will of the owner or proprietor outside opening hours. For this type of offence, penalties of six months to one year's imprisonment and fines of six to ten months are established.

Let's give a practical example to better explain this last case. If you enter a commercial establishment at 10.05 p.m. and it has finished its opening hours at 10.00 p.m. and the owner invites you to leave and you ignore, you would be committing a trespassing offence.

Opening hours are a vitally important issue in these cases. If the alleged offence is committed during the hours when the establishment is open to the public, the offence can never be committed.

In the event of a person entering the property against the owner's will during its opening hours, the owner will have to give a reason to the authorities and specify whether or not he has reserved the right of admission, so it is a rather more complex issue.

What is meant by the offence of housebreaking?

Encroachment is a completely different offence from breaking and entering and therefore appears in a different chapter and article of the Penal Code. Specifically, it is typified in Article 245 of Chapter V of this legal precept.

In this sense, this article states, in section one, that usurpation of a dwelling is understood to be anyone who, using intimidation and/or violence of any kind, proceeds to occupy a property belonging to another person. This offence is punishable, on the one hand, with a prison sentence of between one and two years and, on the other hand, with the penalties associated with the type of violence used. To this should be added a fine that will depend on the damage caused and the profit obtained by the usurper.

Likewise, in section 2, article 245 of usurpation of a dwelling states that this offence is also imputable to those who, without express authorisation, occupy a house, a building or any other type of property that does not constitute a dwelling and remain in it against the will of the owner. The penalties in this case are fines of three to six months.

So that, as in the previous case, you can get a closer idea of how this concept is applied in reality, imagine that a friend of yours has a second residence in a certain place that he does not use regularly. You, for whatever reason of necessity, decide to occupy it without his permission, for which you would have to pick the lock or break a window, and you stay there for a certain period of time. This is a clear example of a home invasion.

"Dwelling", the fundamental term differentiating the two offences

You will have realised at this point that the term "dwelling" is of vital importance in specifying the two offences. However, do you really know what it is? Let us explain it to you below.

The best way to unravel the meaning of the term "morada" is to turn to the dictionary of the Royal Academy of the Spanish Language. Specifically, it states that this concept refers to the place where a subject dwells, that is, resides or lives in a place for a certain period of time.

Taking into account this definition, which is used in the Criminal Code to specify this action, persons who enter a dwelling that constitutes the domicile of a person, whether natural or legal, automatically incur in the crime of trespassing. Similarly, in the case of a second residence, it would be a home invasion.

In addition, you have probably also noticed that the penalties, whether imprisonment or fines, are much higher in the case of trespassing than in the case of usurpation of a dwelling. This is mainly because, in the case of breaking and entering, it is understood that there is a special violation of the owner's privacy since the property in question is the one in which he or she resides on a daily basis. This is the reason why prison sentences are foreseen for one offence and not for the other.

Conclusions

In summary, the key to differentiating between the crime of trespassing and the crime of usurpation lies, fundamentally, in the concept of dwelling, which implies a place of residence and in which it is taken for granted that there is a certain degree of privacy that must be preserved and protected. On this basis, we are sure that, when you are faced, either directly or indirectly, with a case in which there is a controversy between the two offences, you will be able to specify which one in particular.

In any case, the help of a professional will be of great use to you when dealing with a case of trespassing or usurpation. Only in this way will you be fully advised and able to deal with the complaint and get a judge to find in your favour. Therefore, if you have any further questions, we invite you to contact us.