The Andalusian Regional Government (Junta de Andalucia) passed in January, 2012 a Decree to regularise and clarify the legal status of buildings in rural areas on land that is not zoned for building, and legalise them wherever possible in accordance with the Land Use Laws in Andalusia. Rafael Berdaguer, founding partner of Rafael Berdaguer Abogados in Marbella, explains the situation for readers of SPI.
By Rafael Berdaguer – Lawyer
The Decree foresees three types of cases: isolated properties, settlements requiring public utilities and services and rural settlements which also require certain types of utilities and services.
Isolated properties are divided into different categories to describe their status:
A) Buildings which comply with existing planning.
The owners of legal buildings constructed with a licence do not need to take any action. There are also properties which can be legalised; these have been built without a licence, or with one, but having contravened its provisions which are in compliance with the existing territorial or local planning. These could be legalised providing a building licence is applied for even though the statute of limitation for the authorities to reinstate the legal order has expired. At present six uninterrupted years since completion. Once the licence is obtained the owner could apply for the Occupation Licence. This licence, which in the past would only serve to hire services and purchase supplies, has become the final document that certifies that a building is fully legal. The Occupation Licence means that the building has been built in accordance with the plans for which the building licence was granted. If these buildings do not have a deed, this can be obtained and registered at the Land Registry.
B) Buildings which do not comply with the existing planning.
There are various cases:
B.1. Buildings constructed with a licence that complied with the planning at the time it was granted but not now. These buildings are considered to be ”Out of Planning” (“Fuera de Ordenación”). This means that the owner can only carry out maintenance work for the purposes of safety, health and habitability but cannot upgrade or remodel the property for any other purposes.
A “First Occupation Licence” could be obtained providing the existing use is compatible with zoning laws. A deed can be obtained for the building.
B.2. Buildings which have been completed and, for which the statute of limitation to reinstate the legal order has expired. They can be recognised as “Assimilated to Out of Planning” (“Asimilado a Fuera de Ordenación”).
Up to very recently, a building constructed illegally on rural land that has not been classified as specially protected cannot be demolished or fined if the authorities have not carried out any measures to protect and reinstate the legal order within six years of its completion.
In the resolution recognising them as Assimilated to Out of Planning, the possibility that the services and supplies can be connected to these properties can be granted if these utilities are accessible, but do not lead to the erection of more buildings in the area.
These properties cannot obtain the “First Occupation Licence”; however, a deed for a building with this status can be registered in the Land Registry.
B.3. Buildings that have been constructed in specially protected areas, public areas or which are in areas prone to natural disasters.
These properties cannot be recognised as “Assimilated to Out of Planning”, unless they have been built before the area was classified as specially protected and the statute of limitation to reinstate the legal order had expired before declaring the area of special protection.
For these properties the authorities should adopt the necessary measures to protect and reinstate the legal order.
B.4. Buildings for which the statute of limitation to reinstate and protect the legal order has not expired.
The authorities must take the necessary measures to protect and reinstate the legal order.
How can a building be classed as “Assimilated Out of Planning” statute?
The Town Hall can initiate the procedure, or the owner can do it as well. In this latter case, the owner must submit an application with a plan and the registration number of the property and proof of the date the property was completed by way of a Certificate issued by Town Hall, an architect or the Rates Office (Catastro), proof that the property is qualified for its intended use as an inhabitable place and a description of the necessary works to furnish the property with basic services in an autonomous and sustainable way or if possible by connection to nearby infrastructure networks.
The Town Hall will verify that all requirements are met, especially that the property has been completed and it is not subject to proceedings aimed to reinstate the legal order. The Town Hall may require the owner to carry out the necessary infrastructure works to connect the property to basic services. If this is the case, the owner will have a deadline to present the plans for the project with such works. In a public document, the owners will have to take responsibility for carrying out the aforementioned works, which would then enable them to get the recognition as “Assimilated to Out of Planning”. This resolution will identify the property and describe its purpose. It will also state that the statute of limitation to reinstate the legal order has expired, and specify the type of building works that can be authorised as well as the basic services the property can count on and any conditions that apply. If the owner does not receive an answer from the Town Hall within six months, this means that the status of “Assimilated Out of Planning” has been denied. If there is an express resolution denying such status, it has to provide reasons and warn the owner that the property cannot be used. The Town Hall will in this case adopt whatever measures are necessary to reinstate and protect the legal order.
With regard to “Urban Settlements” and “Rural Settlements”, the Decree refers to the Town Land Zoning Plan which should identify them and set out the conditions and procedure for their legalisation, as long as owners assume the costs of the basic infrastructure and urbanisation.
Which are the advantages of the Decree?
In our opinion it will serve to identify and clarify the status and provide options for properties which were built illegally in the countryside that need to connect with basic services. This will certainly encourage the sale of these types of properties although they will continue suffering from bank restriction on mortgages to those wishing to purchase them.
If you think your property is out planning and you would like to legalise your property please feel free to contact us so that we may discuss the matter.
Lawyer within the firm
Rafael Berdaguer Abogados based in Marbella, Spain.
Please note the information provided in this article is of general knowledge only and is not to be construed or intended as substitute for professional legal advice.
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