Construction & Urban Planning, Construction Process, General Concepts

Registration of Constructions in Spain - Declaracion de Obra Nueva

Legal aspects of the new construction declaration process – ‘New Construction Declaration’ (DON)

1. Concept of the Declaration of New Construction – DON

The Declaration of New Construction or «Declaration of New Construction» (DON) is the legal act by which the existence of a construction carried out on a specific plot of land is formalised, normally by means of a notarial deed, for the purpose of its subsequent registration in the Land Registry.

This procedure formalises and registers what has already been built, in accordance with legal and urban planning regulations.

In other words, the purpose of the D.O.N. is to complete the process so that the actual situation of the building matches the information contained in the Land Registry.

Therefore, it is a procedure that is initially carried out and prepared before a Spanish notary, who will draw up the deeds for the construction on the existing land or plot.

In order to carry out the D.O.N. for new homes, it will be necessary to obtain the Certificate of Occupancy (CH) under the new Spanish regulations of 2007 (Land Law of 2007). Before 2007, new homes could be registered in the property registry without the C.H.

The result of the D.O.N. will be the obtaining of the deeds to the property, duly described in the corresponding title deeds.

So, what documents will you need to complete the registration of the property in the Land Registry?

Your architect’s construction project.
The building permit.
The final building licence or certificate (CFO).
The declaration of new construction (DON).
Ten-year insurance – If you have finally decided to take out this insurance. If not, you must inform the notary that you have not done so, in order to inform the buyers and obtain their confirmation that they agree.
Certificate of Occupancy from the Town Hall.

Once you have all these documents, you must take them to the solicitor. The solicitor will prepare the deeds for the construction and you will sign them. This process is called a Declaration of New Construction. This will declare that there is now a building on the existing plot, which is a dwelling. You must then take these documents to the Land Registry to make the corresponding modification to the registration of the land, which now includes the dwelling, and the dwelling will be legally complete.This process is used in the following cases:

To declare a new construction on an existing plot of land.
To declare an old construction on an existing plot of land that has never been registered before.
To declare a new extension to a construction on an existing plot of land. For example, a room or a new floor.
To declare an old extension on an existing plot of land.
To declare new or old parts of the building, such as a garage, swimming pool, shed, porch, barbecue, car park, etc.

Expenses and taxes:

Notary and land registry fees for the sale
0.5–2% stamp duty (depending on the region) on the sale price
Architect’s fees
Solicitor’s fees

2. Type of new construction declarations

As explained above, there are two main types of new construction declarations, depending on the documents submitted and the legal status of the construction:

A) DON with building permit and technical documentation

This is the standard and fully legal option, in which the owner provides documents proving that the construction has been carried out in accordance with urban planning and building legislation.

Required documentation:

Building licence issued by the competent local council.
Technical project, approved and signed by a chartered architect.
Certificate of completion signed by the architect and the architectural technician.
Certificate of habitability or first occupancy licence.
Construction logbook, if applicable.
Proof that the construction has been completed and complies with the approved project.

Legal effects:

Confirms that the building has been constructed in accordance with legal and urban planning regulations.
Allows for full registration in the Land Registry, enabling sale, mortgage, rental, etc.
Full legal and urban planning recognition of the construction.

B) DON by age (based on the age of the building)

Compliance with urban planning regulations is not guaranteed.
The property may be classified as ’outside urban planning regulations‘ or ’assimilated to urban planning regulations that are no longer in force”, depending on regional legislation.
It may restrict future renovations or extensions.
It may create difficulties in transactions, financing or inheritance.

3. Key differences between the two types

Feature	Licensed NBD	NBD by antiquity
Building License?	Yes	No
Fulfilement with construction normative	Guaranteed	Not guaranteed
Legal Construction validity?	Full	Limited
Urbanistic Risk?	Low	Medium-High

4. DON BY ANTIQUITY – No guarantee of compliance with urban planning regulations

As explained above, if a specific building has been registered at the property registry using the DON by antiquity, then there is no guarantee that said building complies with the regulations. The reason is that both the notary and the property registry merely “declare” these buildings in order to align the actual situation of the property with the property registry.

Therefore, it is very important to know that neither the notary nor the property registry verifies whether these buildings comply with current building regulations.

What happens if the declared constructions do not comply with regulations?

Constructions or parts of constructions that do not comply with regulations are considered “OUT OF REGULATION” (in Spanish, “Fuera de ordenación”).

What are the consequences?Properties and buildings that do not comply with current urban planning regulations or that cannot obtain the building permit obtained for the property, could be sanctioned or even demolished, depending on the date of construction.

The local or regional administration has a specific time limit to “prosecute” or sanction constructions. This “time limit” depends on the local and regional administration and ranges from 15 years in Valencia, Catalonia, the Balearic Islands, etc., to 6 years in Andalusia, 6-8 years in Murcia, etc.

This time limit is called the “expiration” period for the administration to exercise its right to act against illegal or irregular constructions.

(**Important note: if the building was constructed in protected areas, public land, etc., there is no expiration date for enforcement.)

Therefore, if the owner confirms that the administration’s rights to act against the building have expired (usually by presenting an architect’s Certificate of Antiquity), the construction will be considered “non-compliant,” which in Spanish is called “FUERA DE ORDENACIÓN”.

What does “Fuera de Ordenación” mean and what are its legal consequences?

For local/regional authorities, these types of constructions, being old, would be legally consolidated because:

The buildings were constructed after the deadline for the administration to take action against them had expired (15 years in Catalonia and Valencia, 6 years in Andalusia and Madrid, and 6-8 years in Murcia, etc.), even though these buildings do not currently comply with current regulations (i.e., the minimum distance to the property lines, as in this case). This is justified by the Certificate of Antiquity issued by an architect.
There are no current or pending urban planning violations or other administrative actions against these buildings (such as sanctions, fines, or demolition orders) affecting the property. Therefore, it is considered that the public administration can no longer take any action or adopt any type of sanctioning measure against these buildings in the future. – This is justified by a certificate from the City Council called a “Certificate of No Urban Planning Infringement”

Therefore, if the above is correct, these buildings will be recognized and respected, even if they were built without a building permit.

As explained above, the most effective way to obtain confirmation from the administration regarding the existence of any pending urban planning infringement proceedings against buildings (such as fines, penalties, or demolition orders) is to request that the administration issue a certificate to that effect. This is what we call a “CERTIFICATE OF NO URBAN PLANNING INFRINGEMENT.”

Consequences of “non-compliant” constructions

As indicated in this report, the fact that the construction is registered due to its age in the property deeds and in the land registry does not change its legal status with respect to compliance with regulations.

And, in the event that these constructions do not comply with building regulations, they will not be demolished (provided the owner justifies the expiration of their management rights and there are no fines or penalties). However, and this is very important, these constructions will not be 100% legal and, as a result, will be subject to certain limitations that do not apply to 100% legal constructions.

What kind of limitations do non-compliant constructions have?

They cannot be extended: For example, existing buildings cannot be extended.

Restricted internal renovations: Therefore, no new construction can be carried out on the property. The local authority will authorize very limited interior renovations, which will typically be restricted to those strictly necessary for health or safety reasons. (Sometimes even solar panels, sewer connections, or electrical or water connections are not authorized.)

No structural renovations: Another consequence is that, if a structural renovation is requested, the City Council could require that the necessary work be carried out on the property to comply with regulations (removing or demolishing the non-compliant part).

Therefore, the City Council might not approve a permit to renovate essential structural parts of the building, such as the foundations, roof, etc. The City Council will authorize the “renovation” of the existing dwelling and the “repair” of the existing structure, but not structural renovations of the property.

Similarly, in the event of a natural disaster or flood that could affect the structure of the property, the City Council will not grant a permit to “rebuild” the building in its existing form. A new building will only be authorized if it complies with building regulations.

Therefore, if you wish to carry out internal renovations, major or minor works on the property, you will need an architect’s report to confirm whether this is still possible under the current urban planning regulations (Urban Planning Certificate) and to obtain the corresponding permit.

5. Legal Recommendations

Whenever possible, it is strongly recommended to proceed with a licensed DON which guarantees full legal certainty.
In the case of a DON based on seniority:
- Verify that there are no urban planning sanctions or ongoing proceedings.
- Check the statute of limitations in the corresponding autonomous community.
- Clearly state in the deed that the declaration is not a confirmation of urban planning legality and that the property is outside of urban planning regulations.
Buyers should be aware that registration in the Land Registry does not automatically mean that the property is legal from an urban planning perspective.

6. Conclusions

The declaration of new construction is an essential step to legalize and register buildings in Spain. However, the type of declaration—with a building permit or based on age—has significant legal implications.

Only the version supported by a building permit guarantees full legality.

Conversely, a declaration based on age allows registration, but does not guarantee compliance with urban planning regulations.

Therefore, it is highly recommended to consult a lawyer specializing in property and urban planning before formalizing and registering any building.