ABSENCE OF CERTIFICATE OF HABITATION IN ANDALUCIA- DECLARACION RESPONSABLE

Which is First Occupation License and Second Occupation License in Andalucía? 

Change of the name from “Certificate of Habitation” to “Licencia de Primera Ocupación”  – First Occupation License

In 2020, Andalucia gov converted the “Certificate of Habitation ” (Cédula de Habitabilidad) to the “License of First of Occupation” (Licencia de Primera Ocupación), and it was only requested to new buildings. This procedure and its implications is exactly the same as per other regions of Spain as Valencia region. (read our Article for Valencia Region here)

So, in Andalucía, the “Certificate of Habitation” is now the “Licencia de Primera Ocupación”, which is used for new buildings.

What about resales?. Is there in Andalucia a “Licencia de Segunda Ocupación” or Second Occupation License”? 

Andalucia does not request Licencia de Ocupación to complete the sale of resales

Tradionally, despite of other regions as Catalonia, Valencia, Murcia, etc, in  Andalucia it was not common to get Certificate of Habitation in the sale and purchase or resale properties.

So, in sales and purchases process, it is not necessary to supply from the vendor the Certificate of habitation or Second Occupation License.

Can water and electric contracts be changed in Andalucia without Certificate of habitation or Second Occupation License? 

Yes. in Andalucia the Certificate of Habitation or Second Occupation license is not needed to make the changes of water and electric contracts. So, most of property purchases in Andalusia are existing homes and some of these do not currently have a CH.

So, as result, even that there is not Certifcate of Habitation the sale can be completed, and the changes of water and electric contracts can be completed in the name of the new owners.

How to obtain the Certificate of Habitation or the License of Occupation for old properties in Andalucía  for tourist or vacation rent in AirBnB?

As stated above, in Andalucía, it is not required neither  the vendor, nor the buyer, to provide the certificate of habitation in resales. It implies that the find a high number of cases where properties are bought and sold without this certificate in place.

The problem arises when the owner of the property wishes to apply for the tourist rent or vacational rent license. Some big platforms as AirBnb, Homeaway, Booking, etc, force owners to supply the Certificate of Habitation to publish the property in their platforms, and also it is a document requested by the administration to get the tourist license registration.

In order to solve this point, Andalucian Laws has created a document called “Declaración Responsable de Ocupación”. 

The Andalucian Goverment regulates in the recent law to solve the situation: The LISTA

“Declaración Responsable” in Andalucía – Ley 7/2021 – “LISTA”

The law Ley 7/2021, de 1 de diciembre, de impulso para la sostenibilidad del territorio de Andalucía (also known as “LISTA”), on its  art. 138 establishes 2 ways to obtain the Certificate of Habitation – Second Occupation license by the process of “Declaración Responsable” (Responsible Declaration from the owner).

1.- New buildings or totally renovated properties with a prior Building License or Responsible Declaration (“Declaración Responsable”)

This is the Declaración Responsable for First Occupation License (“Licencia de Primera Ocupación), and it is provided when the occupation or use of buildings or facilities covered by a prior license or responsible declaration of works.

And always provided that they are completed and adjusted to these and their destination is in accordance with the applicable regulations.

2.-  Old properties or existing constructions- Resales – License of Second Occupation by Declaración Responsable

For existing properties or constructions, in the absence of previous building license, it can be obtaiend a “Declaración Responsable” which will make the same effects as the “Licencia de Ocupación” or “Certificate of Habitation”.

What is the declaration responsible for second occupation ?

The ” statement second responsible _ occupation ” in Spain is a specific administrative document related to the use and occupancy of housing units. It’s particularly relevant when dealing with existing properties that have been previously occupied. Here’s a detailed explanation :

Definition and Purpose

• Statement Responsible : Literally translated as “responsible declaration,” it’s a self-declaration document in which the property owner states that the property meets the necessary conditions for habitability and use as per the local regulations.
• Second Occupation : This term means “second occupation.” In this context, it refers to properties that are not new and have been previously occupied or used.

Context and Usage

• Used for Existing Properties : This declaration is typically used for properties that are being re-occupied, such as when a property is being sold, rented out, or if a new utility contract is needed.
• Alternative to Habitation Certificate : In some cases, it can be an alternative to the “Cédula de Habitabilidad ” (Habitation Certificate) for existing properties, depending on the regional regulations.

Process

• Submission : The declaration is submitted to the local town hall ( City Hall ) or relevant municipal body.
• Owner’s Responsibility : By submitting this document, the owner declares that the property complies with all the legal requirements for habitation without the need for a prior technical inspection.
• Faster Process : This process can be faster than obtaining a traditional Habitation Certificate, as it often doesn’t require an inspection or the same level of bureaucratic processing.

Legal Implications

• Legality and Compliance : The owner assumes legal responsibility for the accuracy of the declaration. If the property does not meet the standards, the owner can face legal consequences.
• Utility Contracts : It’s often used for setting up utility services (like water and electricity) for the property.

Regional Variations

• Different Across Regions : The requirements, process, and validity of this declaration can vary between different autonomous communities and municipalities in Spain.

Importance for Property Owners

• Ease of Transactions : This declaration can simplify processes related to selling or renting older properties.
• Verification of Compliance : It’s essential that the property actually meets the standards claimed in the declaration to avoid future legal issues.

In summary, the ” Responsible declaration for second occupation ” is a streamlined administrative process used in Spain, particularly for properties that have been previously occupied, to certify their suitability for continued occupancy. Property owners should ensure that their property genuinely meets all required standards before submitting this declaration.

Can a “Fuera de Ordenación” or “DAFO” obtain the license of occupation-Declaración Responsable requested to obtain the tourist or vacational rent license in Andalucía? 

Yes. The art. 138 from the LISTA, establishes that a Declaración Responsable, with the same effects as per the License of Occupation, can be obtained in the following cases:

• For those existing buildings that comply with current planning normative
  • OR
• For those are in a legal situation outside of planning (“Fuera de Ordenación” – DAFO), located on urban land not subject to urban transformation actions, provided that they have not been the subject of works.

So, in case your intention is to obtain a Tourist License, then, you will be requested to obtain what is called “DECLARACION RESPONSABLE DE OCUPACIÓN”. This is a document issued from the Town Hall and which substitutes the Certificate of habitation. For this, you will need to supply to the Town Hall:

• A certificate issued by an official architect with plans and details confirming the property fulfils with the habitation requirements.
• A document where the owner guarantees under its responsibility that the construction and the documents provided are according to law.

Is it possible to obtain the Certificate of Habitation on a DAFO in Rustic Land in Andalucía? 

No. Following the art 138 from the LISTA, the Declaración Responsable is authorized to obtain for DAFO properties but in “urban land”, not in rustic.

So, how Can I obtain a Tourist Rent License in a rustic land property “Fuera de Ordenación” or DAFO?

You can obtain the Tourist or Vacational Rent License with the same DAFO document. The DAFO obtained from the public administration will have the same effects as the License of Occupation in order to obtain the Tourist or Vacational rental License.