How to Evict Illegal Occupants Using Article 41 of the Spanish Mortgage Act: Procedure, Security Deposit and Deadlines
Among the ways to recover possession of an illegally occupied property, Article 41 of the Spanish Mortgage Act stands out because it forces the unlawful occupant to post a liquid security deposit (cash or first-demand bank guarantee) merely to oppose the claim. We analyse the closed list of grounds for opposition, deadlines, land-registry requirements and its advantages over ordinary civil and criminal eviction routes.
Introduction: recovering possession from unlawful occupants
Among the various procedural routes to recover possession of a property occupied without title, Article 41 of the [Spanish Mortgage Act](https://www.boe.es/buscar/act.php?id=BOE-A-1946-2453) stands out due to a feature unique in Spanish law: the ability to force the unlawful occupant to post a liquid security deposit (cash, first-demand bank guarantee, etc.) as a prerequisite to oppose the claim at all.
That requirement considerably limits any defence and can even lead to a judgment in the claimant's favour without a hearing when the deposit is not posted. On top of that, even where the deposit is posted, the grounds of opposition are strictly limited by statute.
This article analyses this procedural route to evict illegal occupants and compares it with the alternatives: precarium eviction (art. 250.1.2 LEC), summary possession action ([art. 250.1.4 LEC](https://www.boe.es/buscar/act.php?id=BOE-A-2000-323)), and the "anti-squatter law" ([Law 5/2018 of 11 June](https://www.boe.es/buscar/act.php?id=BOE-A-2018-7833)).
1. Legal basis: art. 41 LH and its procedural track
Article 41 of the Spanish Mortgage Act provides that real actions arising from registered rights may be exercised through the oral proceedings governed by the Civil Procedure Act (LEC) against those who, without a registered title, oppose or disturb them, provided the right is duly entered in the Land Registry.
The procedural rulebook is in [art. 250.1.7 LEC](https://www.boe.es/buscar/act.php?id=BOE-A-2000-323), referring to the specific rules of art. 439.2 and 440.2 LEC on admission, security deposit and closed grounds of opposition.
> This is a registry-based real action: the source of standing is not de facto ownership, but the current land-registry entry.
2. Non-negotiable requirements
Three conditions must coexist:
2.1 A registered real right in favour of the claimant
The claimant must be the land-registry holder of a real right (freehold, usufruct, use, surface right, etc.). Proven with an up-to-date nota simple or registry certificate (ideally less than 3 months old).