November 22, 2006 at 9:06 am #52462
This is my first post so a big hello to everyone.
A friend of mine bought a piece of land in the campo with the intention of building on it. He bought it back in 2002 from local people. At this time, although his plot was under 5000 sq m, he could have got a building license and built his house. He decided to wait awhile before he sought a building license and by the time he did (2004) the laws had changed and he was told he could no longer legally build on his land although the local council told him to go ahead and build and they would make it “right” when the house was built. He paid nearly 3000 euros in taxes to the town hall to apply for a building license that he knew he could not get but he thought it politic to do so.
He has now built his house (2006) with no building license and no interference from the local council. He cannot have a certificate of first occupation but he received written permission from the town hall to connect into the electricity supply which was acceptable by the electric company.
He clearly does not have a legal property but he has been advised that he can make it legal now if an architect is prepared to give a certificate of antiquity that says that the house is over four years old.
My question is, if he was to go ahead and get a certificate of antiquity and then register the new build on the land, would his house instantly become legal. Does the fact that his house would be registered on the official property register and an escritura given for the new build make him immune from the current witchhunt of illegal properties in Andalucia. It does seem unusual that this could be the case but he is told that this is the Spanish way, it goes on all the time.
It seems there is a statute of limitations in spain that allows an illegal property to become legal after four years.
Anyone got any experience of this?
Cesar, I would value your opinion.
November 22, 2006 at 11:17 am #67470
Your friend built a property in a plot of rustic land which is too small to build a dwelling in. All this was done after law 7/2002, de 17 de diciembre, de Ordenación Urbanística de Andalucía came into place.
Your friend’s house is absolutely illegal. As he has finished his house in 2006, there is a timeline of 4 years which has started in 2006, not in 2002, to denounce him (whether it’s the town hall, particulars, neighbours etc…).
The 4 year rule you mention is in art 211 of said law, being the property in Andalucía. And it’s not so straightforward as it has many nuances to it.
The Land Registry will not accept a Declaración de Obra Nueva because there was never any building licence in place nor can there be due to its illegal status.
Your friend’s house is the prime example of a house that must be demolished as it is absolutely illegal. He will not get a LFO ever and could see his house demolished at any time with him having to pay the costs of the demolition plus economic sanctions.
After said law was passed in 2002 the situation you describe is not the norm, it is the exception that must be harshly punished.
November 22, 2006 at 11:51 am #67471
Drakan, thank you for your opinion, I will pass it on.
There are also many Spanish families building in the area and they too do not have building licenses.
My question was, if my friend manages to survive for four years without a denunciation from any source, can he register his property and then become legal. Yes or no?
Also, there are some Spanish architects who are prepared to give false certificates of antiquity for a price. I do not condone this practice but it does happen and can allow a property to become registered earlier than four years. I know of cases where people have registered a Declaración de Obra Nueva with no building license but with a certificate of antiquity. They now have escrituras for their houses.
I do respect your opinion but you have to remember that a lot of northern europeans have been the victims of many illegal Spanish transactions and are now having to deal as best they can with the consequences.
I am happy to say that my own property is entirely legal but I have a great degree of sympathy with those out there whose lives are being made miserable by the uncertainty of this type of situation. Many spanish people have become rich on the back of northern europeans and the Andalucian economy would suffer a severe setback if we all upped and left.
November 22, 2006 at 1:02 pm #67472
I already said no, the Land Registry will not admit it even after 4 years have elapsed. The land can be under his name, of course, but the land registry will not admit the new construction because it is completely illegal and still will be; another matter being that after those 4 years the Authorities will not be able to sanction him due to the 4 year rule already mentioned by you.
Otherwise we would all be doing this to save money buying and building on rustic instead of expensive urban property. I cannot say I’m sorry for him, he knew that what he was doing was illegal. Many things changed after that law was passed back in 2002.
Many British and Irish conmen working in rogue real estates have become even richer than us spaniards preying on their fellow countrymen.
In a case like your friend’s I would demolish his property without a blink.
November 22, 2006 at 2:08 pm #67474
Dakran, just one final question if I may – You say no but what about the people who I mentioned in my last posting, who have gone to the notary with their certificates of antiquity and registered their new builds on their land. They had no building licences but their properties are now properly registered at Land Registry and they have their escrituras to prove it. Are their properties now legal or not? Have these people wasted their money or are their houses now as legal as anyone elses?
As an honest English lawyer, it has been nice to hear the views of an honest Spanish lawyer. I will be interested to hear others’ opinions too.
November 22, 2006 at 2:46 pm #67475
Replying to your query, this is illegal. The Land Registry can not convert something illegal to legal. For the Land Registry to register this a Declaración de Obra Nueva has to be done which requires in turn a licence to build to the best of my knowledge as I explained earlier on.
Things have changed a lot since that law was passed in 2002 in Andalucía. Before it many people -foreigners mostly- abused the laws building on non urbanisable land (rustic). Now the Government is cracking down on this practice.
As I said, after 4 years they can not demolish your property (unless you have built it in an area of special protection, such as green belt, in which case there is no time limit and can always be demolished) nor impose sanctions on them and that is what is most important from their point of view albeit you can not register the new build at the land registry if its rustic. What you mention surprises me, but who knows, everything is possible I’ve seen plenty of illegal actions in my lifetime. But this is not a legal loophole to be used as a general rule.
If the plot of the rustic land is large enough, and depending on the PGOU, you can build a house. But normally this requires huge plots of at least 10,000-20,000 m2, at least. In your friend’s case with a plot of only 5,000 m2 he can not be allowed to build a dwelling by the town hall. The Land Registry should deny him the right it is the registrar’s duty and it is called calificación registral. Moreover, the Notary shouldn’t allow him to declaracion de obra nueva deed.
In case I’m wrong, PM Cesar as he happens to be a house planning specialist lawyer and I’m more of a conveyancing lawyer.
November 22, 2006 at 3:27 pm #67476
Drakan, I think don’t think that we are going to get any further with this. I registered with this forum this morning to try to solicit a variety of opinions on this tricky subject so that I could give some meaningful advice to a friend. I would like to hear from a wider audience who I am sure would also find this topic interesting.
November 22, 2006 at 3:59 pm #67477
I have asked a fellow lawyer in my law firm who specialises in planning law and he tells me that it is indeed possible. After the 4 years have gone by (2010) your friend will indeed be able to obtain a declaración de obra nueva and register the house. I’m really surprised this is actually possible. So it will be legal after it has been registered past those 4 years. ¡¡!!
So I apologise, you were right. I knew you could do this before that law was passed in 2002 but I’m surprised you can still do it.
November 22, 2006 at 4:55 pm #67478
Drakan is not the only one who is amazed by the Spanish legal system ! (And he is a lawyer. ) 😆
November 22, 2006 at 5:12 pm #67479
Drakan I was biting my nails while reading through your posts. This 4 year rule is our last hope of getting our house registered, so we can sell it and move back to the UK.
We understand several people in our area have gone through this process and like Jasmine’s friend we have paid money to the town hall and they have given us paperwork to have the electricity connected.
We bought our land in 2001 and our house was built at the end of 2002/beginning of 2003. We did not know the building licence didn’t exist until over a year after we moved in.
We had found an architect who would for 1,000 euros produce a false certificate of antiquity, based on the fact that we had paid for the construction insurance, but we decided to wait until next February when the 4 years is up, as we didn’t want to knowingly do anything illegal, even though people say “its Ok, its the done thing”.
When we get this certificate can we use a gestor to do the paperwork or do we have to use a lawyer? Our funds are very limited!
November 22, 2006 at 6:30 pm #67480
Hope it works out for you Arabrab. Many people bought like this because they were told it was the way they do things in spain. It can be seen on forums all the time (oh well this is spain!!!)
What many people do not realise is that all Brits that invest in spain are not rich and sometimes they have sold their house to “live the dream” and after working all their lives end up with nothing. Spanish people seem to think foreigners have money to throw around and its ok if they lose out.
November 22, 2006 at 6:44 pm #67481
Hi Arabrab, better to use a lawyer I think. Should be below 1000 Euros.
Shop around asking for professional quotes.
Once more I apologise, I really thought this practise was over after that law came in place. My law firm really doesn’t encourage buyers to purchase rustic land because of it’s many pitfalls. I guess there are just too many illegal properties built on rustic land to pull them all down now although I’m personally in favour of doing so but being realistic townhalls don’t have either the will nor the money to do so.
November 22, 2006 at 7:07 pm #67482
Thank you Katy. Yes, we did sell up in the UK and invested all our funds in our villa in Spain, hoping for a tranquil peaceful early retirement. My husband had been suffering from stress, but we didn’t know stress until we moved here!!
We are living on his pension, taken early, and agree that people seem to think that we are made of money. At the moment our assets are worth 6,000 euros, the value of the land without a building licence.
We didn’t set out to build illegally, but that’s how it has turned out.
Fingers crossed for next year.
Thank you Drakan, as I said before we did not intentionally set out to build illegally.
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