Marbella Illegal Property Building Issues

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This topic contains 5 replies, has 4 voices, and was last updated by  Yolanda P. – Ypama Abogados 1 year, 5 months ago.

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  • #199157

    bc1050
    Participant

    Does anybody know what areas in Marbella have issues/risks associated with illegal building that don’t have the proper permits?

    How easy is it to properly and accurately identify which areas do and don’t have any problems?  Can local law firms be trusted to a proper and competent due diligence on this before buying?

    Thanks

  • #200828

    Mark Stücklin
    Keymaster

    It’s a real mess. Basically the whole municipality is affected. They are now back to a town plan from the 80s. A good lawyer should be able to tell you what locations are problem free.

  • #201164

    rojoybago
    Participant

    Mark is right in that the whole area is affected. A good lawyer will however explain the situation to a buyer and allow the buyer to make an informed decision; ie to buy or not. Since the suspension of the town planning some two years ago a few thousand of these second hand properties have been re – sold; if not advised by their lawyer of the situation (extremely unlikely)  the notary would anyway have made it very clear.

    Whilst not ideal, buyers are taking a pragmatic view and hoping for the limbo to pass. Banks are lending on these properties as they’ve also done their homework and are aware that it’s a matter of a time and red tape.

    I can think of two urbanisations that are really illegal and will not be issued with a 1st occupation license; one of these is Banana beach !! (although they won’t be demolished, still pay rates and taxes, are hooked up to electric co, water co, municipal sewage etc)…… Consult a well established independent lawyer !!

  • #201797

    Hi, my name is Yolanda Palencia and I am a solicitor in Marbella highly specialized in urban planning.

    As Mark has said, Marbella is a chaos right now. Town Planning (PGOU) is regulated by a plan approved in 1986 with more than 100 modifications that cannot be seen on internet (as they were approved before general use of internet and are not digitalized).

    The Town Hall has just approved a Consolidated Text (Texto Refundido) with all these modifications, but we haven’t yet a copy of it as a public document. This means that, even though the 1986 PGOU can be seen on internet (SITMA), the information provided there cannot be trusted as the PGOU may have been modified.

     

    Usually the only way to know the legal situation of a property is asking for an appointment in the urban planning department of the Town Hall, knowing what to ask and having a minimum understanding of urban law. Why? Because the Town Hall inform about facts but not about consequences.

    I mean, here is the information given by the Town Hall to a client: the property is in an area classified as Suelo Urbano no Sectorizado (not sectorized land), it has a sectorized plan definitively approved, a Partial Plan approved initially and an Urbanization Project approved initially. Does this means anything to you? I suppose the answer is “no”.

    To me this information means a lot of things, although I’m missing other information as to be able to provide my client with a written report.

    This is why you need a lawyer with in depth knowledge of urbanism.

     

    On the other hand, I don’t agree with Rojoybago that it is extremely unlikely that a lawyer will advise clearly about the situation. I think that this opinion comes as a misunderstanding.

    Usually lawyers have been hired to advice in conveyancing about contract – civil  law – issues (i.e. checking land registry, cadastral administration, private contract and title deed). This keeps on being the trend in the market and usually the fees provided to the clients are just for this kind of services.

    If you want the lawyer to provide advice about urban planning (PGOU), the best thing to do is to ask the lawyer whether his/her fees include this kind of services. Also, it is a good idea to ask about previous experience about urban planning issues, so you can have an idea about his/her knowledge. Usually the fees are a little bit higher when urban planning advice is included (it implies an extra effort in being updated, well prepared, and time to go personally to the Town Hall).

     

    For instance, in my Law Firm – Ypama Abogados – clients are given the chance to choose whether to invest in having a report in urban planning or not.

     

    Finally, about buying without first license occupation (FLO).

    The importance of the FLO has to be considered depending on the price, the kind or illegality and the use pretended for the house. If you just want to come some weeks during the year to enjoy Marbella, the irregularity is that the house was built in common rural land and the price is really good, then buying can be a good business.  We have seen that the intention of the Town Hall is no demolition at all (2010 PGOU), so it is expected the same criteria in the new PGOU, although it may take around 4 years to have a new plan. Banks are well aware of this situation and are giving more mortgages than with the 2010 PGOU!!

    But if you have in mind renting the house some weeks during high peak season to other tourists (rentals for less than 2 months), you have to register the house as “tourist accommodation” and to do so you have to have the FLO.

  • #201801

    rojoybago
    Participant

    Hi Yolanda,

    You misunderstood me. What I said was I would think it extremely  unlikely that a buyer of a “so called” illegal property who uses a local lawyer would not have been made AWARE of the current illegal situation. There are (I suppose) great lawyers and mediocre lawyers in this town but I don’t believe any of them would withhold this information from their client. AND if they did the notary would bring it up just before signing the deal.

    I bought an “illegal” property recently and my lawyer got the info in a five minute meeting with the town hall planning department; easy peasy. I went ahead with the purchase.

    Regarding the rental license for tourist short term lets whilst it is a requirement that the property has a 1st occ licence, you don’t need to produce it, neither are you required to declare that it exists. There are currently 100’s of illegal properties in Marbella (other areas as well) with these licenses and being rented out……… I’ve got one myself!

    Summer is on the way and Marbella is busier than ever :)))

  • #201885

    Hi rojoybago,

    Sorry. I misunderstood you, but again I don’t agree. My experience as lawyer in Marbella is that you cannot count on the notary to tell you everything about the urban situation of the property. Also, not every seller has paid a lawyer for advice, so many people is selling his/her property without really knowing the legal situation of the property (or they don’t want to hire a lawyer so they can say that they didn’t know).

    I agree with you, though, that sometimes the legal situation of a property is “easy peasy”, this is why we work with fess with and without urban planning reports.

    Regarding the rental license: The fact that you don’t need to produce the first occupation license, doesn’t mean that you have to have it to register the house. The Decreto 28/2016 states clearly that to register the house you have to have it; and in the form sent to register the house you formally declare that you fulfills all the legal requirements to be able to register the house and you can prove it (DECLARA:- PRIMERO: Que son ciertos cuantos datos figuran en la presente declaración. – SEGUNDO: Que cumple con los requisitos establecidos en la normativa vigente para el acceso o ejercicio de la actividad indicada. – TERCERO: Que dispone de la documentación que lo acredite y que está informada que la Administración podrá hacer las comprobaciones necesarias relativas al cumplimiento de los datos declarados y tenencia de la correspondiente documentación. ).

    So, when you have filed the writ saying that you declare to fulfill all the legal requirements to register the house and you have not a first license occupation, you have committed an administrative offence.

    If Junta de Andalucia sends an inspector and discover that you don’t have the first occupation license when you have declared that you have one, you can be fined with up to 18.000 euros if it is considered “infracción grave” of article 71.5 (falsedad en los datos).

    What are the chances of Junta Andalucía sending you an inspector? The chances of an unsatisfied customer that denounces (or files a complaint against you) you for whatever reason.

     

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