CONSTRUCTION OF HOUSES ON RUSTIC LAND IN ANDALUSIA – updated 2023

Can you build residential homes on rustic land in Andalusia?

The answer is yes.

Andalusian legislation allows the construction of residential homes on rustic land, and it does so through the figure called “extraordinary actions on rustic land”. This regulation is based on Decree 550/2022, of November 29, which approves the General Regulation of Law 7/2021, of December 1, promoting the sustainability of the territory of Andalusia – Click here to see .

This regulation allows the construction of houses on rural land in Andalusia. For this, the construction activity of this type of housing fits them into what it calls “extraordinary actions” on rustic land.

What are “extraordinary actions on rustic land”? Article 30

These are actions of public and social interest that contribute to the planning and development of the rural environment, or that have to be located on this type of land because its location on urban land is incompatible.

In accordance with article 22.2 of the Law, extraordinary actions may be aimed at the implementation of endowments, as well as industrial, tertiary or tourist uses and any other that must be implemented in this type of land, including works, constructions, buildings, roads, infrastructures and technical services necessary for its development.

Could residential constructions on rustic land be considered then?

Pursuant to the provisions of the same article, buildings intended for residential use may be jointly authorized, and proportionality and linkage between them and extraordinary actions must be guaranteed.

These are the conditions and requirements:

1. In general, a dwelling may be authorized by action when it is necessary for its economic development and is justified by functions of surveillance, assistance, management or control. Exceptionally, a greater number may be authorized for actions that motivate a different need and also comply with the following conditions.
2. That the house and the extraordinary action take place on the same property .
3. That the execution of the house supposes an economically viable investment and amortizable in a determined term in relation to the income that the action generates.
4. That the link between the dwelling and the extraordinary action be maintained . For these purposes, the conditions established in article 29.3 and 4 5 will apply. When the applicable sectoral regulations establish requirements that condition the implementation of the extraordinary action, compliance with these must be accredited in the prior authorization process.

Can rustic single-family homes be built not linked to the extraordinary actions?

The answer is YES.

In accordance with article 22.2 of the Law, isolated single-family homes may be authorized on rural land not linked to ordinary or extraordinary actions, provided that they do not lead to the formation of new settlements in accordance with the provisions of article 24 or prevent the normal development of the ordinary uses of rustic land.

Homes will require authorization prior to the license , in accordance with article 32, and must also comply with the following parameters and conditions:

1. No more than one isolated single-family dwelling per plot or horizontal divisions will be allowed, except for those with a cortijo, hacienda or similar typology, completed prior to the entry into force of Law 19/1975, of May 2 , that prove the existence as of that date of a multi-family use.
2. The plot must have a minimum area of 2.5 hectares and allow the drawing of a circle with a radius of 50 meters inside. The minimum area when the plot is located on forest land will be 5 hectares .
3. The house must be located at a distance of more than 100 meters from any other building for residential use .
4. The surface occupied by the building intended for housing shall not exceed one percent of the plot . In the rest of the surface, the trees, the topography and the natural conditions of the land will be essentially maintained, unless their alteration is necessary for the implementation of ordinary actions.
5. The land occupation  surface from the constructions, by clearing or embankment, which is necessary for the execution of the building, will not exceed thirty percent of the surface it occupies.
6. The maximum buildable surface will not exceed one percent of the surface of the property and the maximum height will be two floors , counting the same in accordance with the provisions of the urban planning instruments.
7. The building will have the typological conditions of an isolated single-family home, having to respect a minimum distance of 25 meters to the boundaries of the plot .
8. The basic services required by the home must be guaranteed independently and preferably through self-consumption facilities with renewable energy sources. Exceptionally, the supply will be allowed through the infrastructure networks when they have the corresponding sectoral authorization and for this only the connection works are required.
9.  The building will be located outside the flood zones and when it is carried out on forest land, the safety conditions of the population must be guaranteed in case of fire and comply with the conditions established in the forest legislation.

Requirement of a prior hearing to the adjoining neighbors

The Decree establishes that the development of extraordinary actions, and, among them, the construction of residential homes on rural land, may not prevent the development of “ordinary” actions on this land. The “ordinary” actions on rural land are agricultural, livestock, forestry, etc. of the area, especially in the neighbors and adjoining.

To this end, article 22 establishes a procedure by which, for the approval of housing construction projects in the area, the neighboring residents will require a PRIOR HEARING so that they can assert their rights in the event that such construction hinders or limits the normal development of their ordinary activities.

What is the procedure to obtain authorization for the construction of rustic housing? – PREVIOUS AUTHORIZATION OF THE CITY COUNCIL.

Within the approval process of extraordinary actions, in addition to the Prior Authorization of the adjoining areas, an authorization from the City Council will also be required, which will be prior to the granting of the license.

In this sense, Article 32 includes the Procedure for authorization of extraordinary actions . The same precept establishes that, in order to limit extraordinary actions, an authorization from the City Council is required prior to the license that qualifies the land where they intend to establish themselves and that alternatively:

• a) Declare the action of “ public or social interest ”, in the cases of article 30.2.b).
• b) Recognize its incompatibility with the urban environment , in the cases of article 30.3.
• c) Authorize the implementation of an unrelated dwelling , in accordance with article 31.

The article itself lists the procedures that must be followed to obtain prior authorization from the City Council :

• a) Request from the promoting person or entity accompanied by the Action Project, in accordance with article 33. If the request does not meet the requirements, the applicant will be required to rectify the lack or accompany the mandatory documents within ten days, with an indication that if you do not do so, your request will be considered withdrawn, after a resolution declaring it so
• b) Once the application is accepted for processing, following a technical and legal report, the Action Project will be submitted to public information for a period of not less than one month, in accordance with the provisions of article 8.

Simultaneously, and for the same period, a hearing will be held for the Public Administrations that protect affected public interests and the holders of the property right of the adjoining lands that could be affected by the action, according to the data that appears in the certifications. cadastral and the Land Registry requested for this purpose.

• c) When the action affects or has a supralocal incidence in accordance with the provisions of article 71, a binding report on the Action Project will be requested during the public information process from the Department responsible for territorial planning, which will be issued in within two months, as provided in article 72.
• d) The resolution of the procedure, approving or denying the Action Project, corresponds to the competent municipal body for the final approval of the urban planning instruments, in accordance with the provisions of the local government legislation.
• e) The corresponding agreement will be published in the Official Gazette of the Province and on the City Council website, where the approved Action Project will also be published.

TERM TO ANSWER: 6 MONTHS AND NEGATIVE SILENCE.- After the period of six months from the entry of the application in the electronic Registry of the competent body for its processing without notification to the interested party of the resolution of the procedure, it will be understood as denied the authorization .

PRIOR AUTHORIZATION CAN BE REQUESTED TOGETHER WITH THE WORKS LICENSE APPLICATION

The person or entity promoting the action may request the joint processing of the prior authorization and the building permit, and must provide the Action Project and the corresponding building project together with the application.

How is the Extraordinary Action Action Project processed?

Article 33 of the 2022 Decree establishes in this regard that the Action Project for the implementation of an extraordinary action will contain the following determinations:

1. Identification of the Public Administration, entity or person promoting the action.
2. Detailed description of the action, which will include:

• a) Situation, location and delimitation of the lands that are object of the qualification.
• b) Physical and legal characterization of the land.
• c) Socioeconomic characteristics of the action.
• d) Characteristics of the buildings, constructions, works, roads, infrastructures and technical services necessary for their development, including the exterior ones necessary for the proper functionality of the activity and of the existing constructions, infrastructures and public services in its territorial area of incidence.
• e) Justification, where appropriate, of the conditions for the implementation of a residential building, in accordance with article 30.4.
• f) Term for the start and completion of the works with determination, where appropriate, of the phases into which the execution is divided.

Justification, rationale and definition, according to the characteristics of the action, of the following extremes:

• a) Public or social interest or incompatibility to locate the action on urban land, as appropriate, in accordance with article 30.
• b) Origin or need for implementation on rural land and justification of the specific location proposed.
• c) Compatibility of the action with the rural land regime and with the territorial and urban planning of application.
• d) Justification of compliance with the affected sectoral regulations, accompanied by the documentation that is required by it.
• e) Compliance with the measures to prevent the formation of new settlements.
• f) Analysis of the territorial, landscape and environmental incidence and definition of the corrective measures for the impacts that could be generated.
• g) Economic-financial viability of the action.
• h) If applicable, the duration of the urban qualification of the land.

What are the obligations assumed by the promoter of the extraordinary activity (in this case, construction)?

Article 33, in point 4, expressly lists the obligations assumed by the promoter of the activity, and which are the following:

• a) Those corresponding to the legal duties of the rural land regime.
• b) Commitment to maintain the link between the buildings and the rustic land uses that justify their authorization and to return the land to its natural state in the cases provided for in the Regulations.
• c) Payment of the compensatory benefit on rural land , in accordance with article 22.5 of the Law.
• d) Application for urban planning license , in accordance with the approved Action Project, within a maximum period of one year from the resolution of the prior authorization procedure.

The expiration of said period will determine the expiration of the authorization , which will be declared after hearing the interested party.

Therefore, as we can see , the interested party has ONE YEAR from the granting of the prior authorization to request the construction license. Although, as we have seen in the articles of the law, the joint presentation of the request for a prior hearing and the construction license is allowed.

Is the authorization to carry out the construction activity subject to a term?

Article 34 regulates the duration of land qualification as follows:

– In general, the term is unlimited. In other words, once the prior authorization and license have been granted, the qualification of the land to carry out the construction activity is not subject to a term.

– However, and this is important, the regulations establish that in the event that the activities to be carried out cease for a continuous period of FIVE YEARS in a row, it will lead to the loss of validity of the authorization.

That is, if the property is abandoned, or its use has ceased for a continuous period of at least 5 years, in this case, the administration will revoke the authorization, and the land must return to its initial state, which will mean demolition of built buildings.

– Extraordinary actions that authorize uses or activities with a limited duration in time, those that require an administrative concession on public domain land and those that are authorized on land included in areas of transformation provided for in the territorial and urban planning instruments.

The authorization in these cases will establish the term of the qualification taking into account the time that is essential for the amortization of the investment and, where appropriate, the term of the corresponding administrative concession, providing for the possibility of renewing it at the request of the interested, before its completion.

The expiration of the term will lead to the loss of validity of the authorization, forcing the entities and promoters or those who are subrogated in their obligations to restore the land to its natural state without the right to compensation.

The above conditions will be recorded in the license that authorizes the execution of the action and in the Property Registry, in accordance with the provisions of the mortgage legislation.

Compensatory payment

The construction project of a rustic house is considered to make an “extraordinary” use of the land, and for this reason the regulations consider that this activity must be subject to the payment of compensation, in addition to the payment of fees and derived taxes. of the granting of the works permit.

Article 35 is the one that includes the terms and conditions of the compensatory payment :

• It is a benefit of a non-tax nature
• Payment is managed and made to the municipality
• Said amount will be allocated to the Municipal Land Heritage
• The amount is ten percent (10%) of the material execution budget of the works to be carried out, excluding the cost corresponding to machinery and equipment, without prejudice to the reductions that may be made on it in accordance with the provisions of the Municipal ordinances.
• However, the amount in the case of single-family homes will be, in any case, fifteen percent. (15%).
• Actions in existing buildings that do not imply a change of use will not be subject to compensatory payment .

The law establishes that the amount of the compensatory payment for extraordinary actions may be reduced in municipal ordinances in accordance with the following criteria, which may be cumulative:

• a) Volume of investments for the implementation of productive uses.
• b) Impact of the action on the local economy and employment.
• c) Contribution to the protection of historical heritage and the environment.
• d) Incorporation of energy facilities from renewable sources.
• e) Additional measures to those strictly necessary for the environmental and landscape integration of the action.

Is there an obligation to pay the compensatory payment when extensions of legally constructed buildings are carried out?

The answer is YES.

The regulations establish that the amount of the compensatory benefit in building actions, consisting of the expansion of a legal building, will be calculated taking into account exclusively the budget for the material execution of the expansion works and will accrue without prejudice to the need to process a new prior authorization in accordance with article 25.3.

That is, the expansion of legally built rustic homes will require:

• Adjoining prior authorization
• Prior authorization from the City Council
• Payment of the compensatory benefit for 10 or 15% of the budget of the work.

CONSTRUCTIVE ACTIONS ON THE DISSEMINATED RURAL HABITAT

What is meant by “diseminated rural habitat”?

Article 23 of the law establishes that, in accordance with article 14.2 of the Law, the areas of disseminated rural habitat constitute a territorial area on which a set of buildings without an urban structure and linked in their origin to agricultural and livestock activity are located. rural environment, whose characteristics should be preserved.

The disseminated rural habitat constitutes a settlement of a non-urban nature on rustic land and to preserve these characteristics, the planning instruments may not delimit areas, nor propose a planning for them, which implies a density greater than three dwellings per hectare .

What type of performances are allowed in the “diseminated rural habitat”?

According to article 36, the actions that can be carried out on the diseminated rural habitat are:

1. In the areas delimited as rural habitat disseminated by the general urban planning instruments or by special plans, urban planning actions may be carried out that contribute to its conservation, maintenance and improvement, and that are compatible with the protection regime of the category of rustic soil where they are located.

This will be done through urban regulation instruments called “Special Plans”.

2. The owners of the land and buildings included in these areas have the duty to pay for the obtaining of the land destined for public endowments and the works to improve the infrastructures and services provided for in the urban planning instrument that orders them.
3. The special plans that will regulate the actions that can be carried out in these “diseminated areas” will establish, in addition to the urbanization conditions, infrastructures, etc., necessary for the development of these actions in accordance with the law, the construction conditions of homes in the area.

And, for this, new constructions must respect the following conditions:

1. a) The typological, aesthetic and constructive characteristics will be consistent with the rural landscape and the traditional constructions of the settlement.
2. b) Traditional values will be preserved, prioritizing actions for the rehabilitation, renovation and regeneration of existing buildings.
3. c) In general, the maximum height of buildings will be two floors .
4. d) One new house per plot will be built and the maximum buildable area will be the average for the area.
5. e) They will not be authorized when their implementation entails exceeding the density established in article 23.3.

What uses can be made and are allowed in “diseminated rural habitats”?

Article 39 establishes that the admissible uses in the disseminated rural habitat, in general, will be the following:

1. a) Residential use with typologies typical of rustic land.
2. b) The necessary use of facilities.
3. c) Ordinary uses of rural land that do not alter the characteristics of the area.
4. d) Tertiary uses complementary to residential use.
5. e) Tourist uses in existing buildings.

What uses are prohibited?

Article 40.

• a) Buildings, typologies and characteristic uses of urban land.
• b) Subdivisions and actions that alter the morphology of the nucleus.
• c) Urbanization works, except those necessary to carry out infrastructures or endowments provided for in the sectoral regulations or in the planning instrument, and those that contribute to the conservation, maintenance and improvement of habitat conditions.

What type of urban infrastructures can be carried out in the scattered rural habitat?

Article 41.

1. Implantation of new buildings
2. Conservation, maintenance and improvement of existing ones
3. Execution of endowments and common infrastructures for the provision of basic services and telecommunications, provided that they are justified in the conservation, maintenance and improvement of the delimited areas.

In addition, urban planning actions aimed at obtaining endowments may be carried out, and the techniques provided for in article 114 of the Law for obtaining general and local systems may be applied, through the unsystematic management modality .

The actions provided for in the planning instruments will be subject to the corresponding municipal preventive control and the implementation of ordinary and extraordinary actions not provided for in them will be adjusted to the conditions and procedures provided for in the Regulations.

The management of unsystematic execution may be (Art. 42):

1. a) Public , through the payment of quotas or, where appropriate, through the imposition of special contributions, according to the provisions of articles 109 and following of the Law.
2. b) Private , in the event that there is an initiative of more than 50% of the land ownership of the scattered rural habitat, through the constitution of a collaborating entity with the purpose of undertaking the corresponding expenses in a regime of fair distribution of charges, applying in a similar way what is stated in articles 241 to 249.

The owners of farms included in the scope of disseminated rural habitat will be compulsorily incorporated into the collaborating entity if they have not adhered within the period provided in article 132.7.

In other words, the owners of these kind of properties will pay jointly the expenses of the infrastructure works to be developped in the “diseminated area” by law, or by the “special plans” of urbanisations.

So, please, take care with it when buying properties in diseminated.

TLACORP May 2023