DECLARACION RESPONSABLE – CEDULA DE HABITABILIDAD – LICENCIA DE OCUPACION 2021

NEW NORMATIVE VALENCIAN REGION 

– SPEED UP THE PROCESS TO SELL NEW BUILDINGS

The Occupancy License (in Spanish “Licencia de Ocupación” ) –  also called “Certificate of Habitation” or “Certificate of Conformity” –  is an enabling title to occupy a house/apartment, and certifies that the construction has been carried out according to the applicable regulations and that, therefore, the construction can be used as “residential living place”.

It is a very important document since, without it, legally, a building cannot be used as a “house”.

Due to its special importance, water and electricity supplying companies often require this document to authorize the supply of services, or to change the ownership of contracts on the name of the new owners.

There are two types of Occupancy License depending on whether they are used for new-build houses, or for second-hand/resales.

– FIRST OCCUPATION LICENSE – NEW BUILDINGS

This is the one that is issued as soon as the construction works are finished, in newly built houses, or in those ones that have undergone a comprehensive reform and that has involved a modification of their structure.

That is, it will be the promoters who, once construction works are finished, issues the certificate that proves that the works have been completed. To do this, they use to present the appropriate documentation to the City Council, and obtain the license to occupy said construction with all the habitation conditions to be considered as a “house”.

Once the occupancy license is obtained, the use of the building as a “house” will be authorized.

This license is issued on newly built houses, as well as on those houses that have undergone a comprehensive reform and that has led to a significant modification of its structure such as reform of roofs, structure, foundations, façade, extensions of existing constructions or building  new ones at the property, etc.

– SECOND OCCUPATION LICENSE

These licenses are granted when the expiration period of the first occupation licenses has expired, and when there is a transmission of the house, or when it is intended to change the water and electricity supplies into another name different from the First Occupation holder.

These are also the licenses that are issued in those old houses that have never had a first occupancy license.

Historically, the process of obtaining occupancy licenses has been a source of confusion, conflict, and even endless legal proceedings between builders, individuals, buyers and sellers of houses in Spain.

This article is focusses exclusively on the new normative at the Valencian Region about FIRST OCCUPATION LICENSES (LO) in New Buildings.

For many years, builders and developers have demanded a streamlining of the processes of obtaining LO, since they were in many times in situations in which, even the construction  finished and ready for its occupation, it could not be sold or occupied by new buyers until this occupation license was obtained.

PREVIOUS PROCEDURE

Historically, the procedure for obtaining the occupation license went through a long and complicated process. Thus, once the LO was requested from the City Council by the promoter, a process was opened by which, the administration, after studying the documentation, and after solving any documentary or procedural defects, ended to a direct inspection by one of the city council technicians to verify that the construction had been completed in accordance with the construction project, and that said construction conformed and complied with the construction license granted at the time.

In other words, the process depended on the speed or slowness of the local administration to manage the license granting file, as well as the availability of its technicians to carry out site visits / inspections to check if the builder had built and completed the works in perfect compliance with the construction license obtained, without skipping the conditions established therein.

It was, therefore, a mechanism of control established by the administration in order to detect eventual construction gaps on the part of the builders, monitoring and ensuring that they, at all times, complete construction of houses in accordance with the license and the approved construction projects.

However, the procedures to obtain said occupancy license could take months, and even years, which left in a complicated position those houses that, being ready to be occupied, could not be sold by the builders, nor used by the buyers, until no response from administration.

CHANGE OF REGULATIONS: THE APPEARANCE OF THE “RESPONSIBLE DECLARATION”  – In Spanish “Declaración Responsable” – “DR”

To facilitate and expedite the sale and occupation of houses by builders, a few years ago, in many regions and autonomous communities of Spain (including the Valencian Community, Madrid, Catalonia, the Balearic Islands, Murcia and Andalusia), a system was established for which the obtaining of the first occupation license was expedited by creating a document called “Responsible Declaration”.

By means of this mechanism, once the construction works were finished, and the Responsible Declaration document was presented to the City Council, the occupation of the property by the new owners was allowed while the definitive “Occupation License” was issued by the administration.

By means of this document, the promoter of the works himself, presents all the documentation to the city council, and signs under his responsibility that the executed works have been completed in accordance with the previously obtained construction license, assuming under his own responsibility any falsehood or error in the documentation provided.

In this way, a step forward was taken in the process of obtaining the first occupation license since, with the mere presentation of the responsible declaration, the occupation of the houses by buyers was allowed and authorized, thus avoiding and unnecessary waiting.

However, this process did not eliminate the issuance of the final Occupation License by the administration. So, once the responsible declaration was received, the City Council had a certain period of time to carry out the appropriate verifications and checks, and to verify that the statements made by the builder or developer had been true. And, in the event that the City Council detected any problem or defect in said procedure, it had the faculty to cancel the issuance of the final occupancy license, and the developer or builder himself being directly responsible for whatever damages caused for the mistakes or errors in the process.

This procedure implied a displacement of the construction guarantee from the public administration to the developer. In this way, the developer, by directly assuming responsibility for the adaptation of the house to regulations, was the one who personally granted the legal certainty of the process,  and allowed a rapid update of the houses built.

However, as we say, according to the previous procedure, there were still two phases:

– The first was the presentation of the responsible declaration

– The second was the issuance of the final occupancy license by the City Council.

And this has given rise to that, for many years, many municipalities considered the responsible declaration as a mere “request” or “application” of the occupation license, without giving it the regulatory effects of the same occupation license.

In other words, the responsible declaration was not considered as an “enabling title” to occupy the house, until the definitive occupancy license granted by the administration was obtained after the appropriate inspections.

The result of this is that, even with the creation of the DR, builders and buyers had to wait till the approval of the LO by the administration to both, selling and occupying the constructions.

NEW PROCEDURE FOR JANUARY 2021 – VALENCIAN COMMUNITY

In January-February 2021, a new regulatory process has been generated to obtain Occupation Licenses in the Valencian Community.

Through the new regulations that are the object of this article, the government of the Valencian Community has established a new system throughout the region, by which the responsible declaration is endowed with the same effectiveness and the same “enabling title” as the Occupancy license when allowing the sale and occupation of the houses.

In this way, once the Responsible Declaration is presented, its effects are assimilated to those of the Occupation License, thus eliminating the waiting process to obtain the subsequent occupation license.

In other words, just the presentation of the “Responsible Declaration” to the city council is considered “sufficient title” to authorize the builder / developer to sell the house, as well as its occupation by the buyers. Thus, once works are completed, the promoter, by submitting the responsible declaration to the town hall, may require  and force the buyer to complete the purchase process, as well as the payment of the rest of the price.

In the same way, the buyer, through the responsible declaration, may contract directly the water, electricity, etc. services, making use of the responsible declaration obtained by the developer.

In principle, the scope of this regulation is for all the town councils of the Valencian Community, except those that expressly continue to abide by the previous regulation.

In other words, it may be the case that there are municipalities that adopt these new regulations, with which the responsible declaration will have the same effects as a settlement of first occupation. However, it may be the case that there are other municipalities that prefer to continue to abide by the previous regulations, and that refuse to make the responsible declaration effective, requiring that the constructions obtain the previous occupation license, through visits to inspections of direct work by the city council.

CONTROL METHOD AND CONSTRUCTION GUARANTEE.

As we say in this article, making the RD fully effective means transferring the constructive guarantee from the administration to the promoters in order to streamline the process. However, the same rule establishes new control and inspection mechanisms that come to supplement the previous processes, always keeping the power to visit and physically inspect the work for a later time.

OUR COMMENTS TO THIS LAW:

From our office, we ask ourselves the following question.

What happens in the event that a builder obtains the responsible declaration as an occupancy license, buyer to deed and complete the sale of the property, and that, later, in a subsequent inspection, the City Council detects deficiencies, and even decrees the nullity of the occupancy license, due to insurmountable construction defects? –

In these cases, a figure of lack of protection with respect to the consumer would be created, who, trusting in the legal security of the system, buys and acquires the property, pays the price, occupies the house, and at a later time the administration cancels it by decreeing a responsibility on a construction company, which, although it is presented as direct responsible both civilly and criminally, leaving in a difficult claiming position to the buyer, and the consumer.

That is to say, this buyer, or this consumer, would have to fight to be compensated by the developer, or the construction company, in Courts and legal procedures that nobody wants.

The response of the Valencian administration in this regard is that this regulation has been promoted not only by the Valencian Community, but also by its own harmonization of European legislation which, for years, has been demanding that the Spanish administration be much more expeditious in these matters and processes, as well as greater trust and responsibility to construction agents in Spain.

Therefore, through this new regulation, what is being done is to apply and develop mechanisms and procedures that are already applied in other member states of the European Community, in order to obtain more agile and simple mechanisms of construction and real estate activity in Spain.