REGISTRATION OF ILLEGAL BUILDINGS – FUERA DE ORDENACION

General aspects

Spanish regulations establish that, in order for a construction to have access to the property registry, notaries must require that the building license be provided, and all the construction documentation, including the final work certificate, etc.

This is what Royal Legislative Decree Seven/2015 of October 30 says (consolidated text of the land law)

What is the situation of those buildings that have been built without a building license?  

In these cases, the same land law establishes, in its article 28.4, that those constructions, buildings and installations with respect to which it is no longer appropriate to adopt measures to reestablish urban legality that imply their demolition, due to the expiration of the limitation periods corresponding, may have access to the property registry.

 What is the purpose of a building “without license” to have access to the property registry?  

The fundamental reason for this is that a construction that is not part of the property registry cannot be part of any legal transaction. That is, you cannot buy, sell, inherit, mortgage, pay taxes, etc.

With which, access to the property registry, allows the construction to be the object of legal traffic, and be part of the property right of the owner. And furthermore, it implicitly implies that said property cannot be demolished, demolished, or otherwise destroyed by the legal system. With which, the owner thus consolidates the property right over said construction, even if it has been built without a license.

If construction built without a license, goes to the property registry, is it fully legalized? In other words, can it be considered 100% legal?

The answer is complicated.

As we have said before, the access of a construction without a license to the property registry means making this construction legally visible.

In other words , when a construction is built with a construction license, the City Council is informed that a construction is going to be carried out , and the Spanish legal system takes notice of said construction. It is also informed when this construction is completed through the certificate of completion of the architect’s work, and its declaration in a notary’s office through the corresponding declaration of new construction. In this way, a construction built with a building license is automatically identified and recognized by the legal system.

However, a construction that has been built without a construction license is not part of the legal traffic, because its construction has not been reported to the public administration . It may be that there is a record of said construction for the purposes of taxes, cadastre, and Ibi, but this does not mean that, for the purposes of construction legality, the agencies in charge of controlling and supervising the works in the territory, have become aware of this legal construction.

In addition, if this were the case, that is, if the administration were aware that there was an illegal construction, it would automatically have to act by ordering the demolition of said construction as it was considered illegal.

What happens is that the Spanish administration , due to the same principle of security in the legal traffic of legal and commercial actions, cannot hold an indefinite term to act against those works and constructions that have been carried out illegally.

With which, the different Spanish regional regulations always establish a maximum time limit for public administrations to detect the works and constructions that are built without a license, and thus be able to penalize them through administrative sanctions, fines, and even demolition orders. After this time without the administration having detected, or without having acted against the construction, it becomes legalized and patrimonialized in the owner’s assets.

“Fuera de ordenación” by regions

We are now going to talk about two cases, the Valencian Community, and Andalusia.

Fuera de ordenación at the Valencian region

In the Valencian Community, the regulations are based on Law 5/2014, of July 25, on “Territory Planning, Urban Planning and Landscape” of the Valencian Community (better known as ” LOTUP “), which was modified last 2019, through the law of February 5, which is in force since February 8, 2019.

This law establishes the following expiration periods :

To determine the expiration term of the actions of the administration in these cases, it is necessary to distinguish between two cases:

• Undeveloped land, rustic, protected . For works that are located on non-developable or protected land , there is no expiration period .

Therefore, regardless of whether the possibility of financially sanctioning said works has expired, the administration can at any time order the demolition of works built without a license, since, as we say, the right of the administration does not prescribe.

• Urban or Urbanizable Land: With regard to urban developable land, the limitation period for those constructions that, at the entry into force of the LOTUP ( August 2024) had not prescribed the expiration period according to the previous legislation is 15 years. The previous statute of limitations was 4 years.

In other words, it is possible to declare a work without a license as long as it had been completed before August 20, 2010 . This date is very important, because it means four years before the entry into force of LOTUP, which was precisely on August 20, 2014.

With which, the works on urban orurbanizable land that, at the date of entry into force of this law, were prescribed for having a construction term for having elapsed more than four years (that is, all constructions completed before August of 2010), can be legalized by accessing the property registry.

However, those constructions on developable urban land that were built without a license after the date of August 20, 2010 , such as, for example, 2011, 2012, 2013, etc., the limitation period of the demolition orders of said constructions it will be 15 years .

The same occurs with constructions built on common undeveloped land , which may have access to the property registry provided they were built before August 20, 2010.

However, and very importantly, those constructions on undeveloped land that were completed as of August 2010, are subject to the imprescriptibility regime of Law Five/2014, of the LOTUP.

And with regard to protected undeveloped land, only those constructions without a license that have been completed before February 1, 2002 may be declared.

This is so, because this date coincides with the passage of four years that governed in the previous legislation and with the entry into force of the Valencian Urban Law 16/2003, which entered into force on February 1, 2006, which came to establish imprescriptibility for protected land.

Concept of Fuera de ordenación in Andalusia -“DAFO”

The same occurs in Andalusia, although there is no distinction between urban and non-urbanizable. In both cases, the Law of Urban Planning of Andalusia 7/2022, in its wording after its last modification on February 8 , 2012, increases the limitation period of the right of the administration to demand the demolition of the works from 4 to 6 years. built without a license.

As in the Valencian Community, this period is understood to be applicable to works without a license for which, on the date of approval of the law, the period of 4 years established in the previous legislation had elapsed. In other words, all constructions built before February 8 , 2008 can be legalized.

Therefore, for those constructions built after this date, the statute of limitations becomes 6 years.

Interpretation of “Fuera de Ordenación”  in Catalonia

The same can be said in Catalonia. Legislative Decree 1/2010, of August 3, approving the revised text of the Catalan Urban Planning Law, increased the limitation period for the action to restore the urban legality of buildings from 4 to 6 years .

That is, to demand its demolition or demolition.

However, in Catalonia the Andalusian and Valencian interpretation of the term in which the new extended term of 6 years begins to apply is not given. According to the Catalan criteria, those works that were built before the approval of the law, that is, August 3 , 2010, would have a statute of limitations of 4 years. And those built later, the term would be 6.

OKAY. It is understood!. So, if I have a construction without a license in which the periods established in the legislation of my Autonomous Community have elapsed without being sanctioned, is my home 100 %?

The answer is a bit complicated.

As we indicated in this report, the passing of the term to sanction/penalize a construction grants the power to register said construction in the property registry. This means that:

The owner can “own” the work without a license. It can be mortgaged, leased, sold, inherited, donated, etc,  the Spanish system cannot decree its demolition anymore. 

However, although the Spanish system recognizes such construction as legal, it cannot give it all the rights and advantages that a legal construction has. In other words, the Spanish system cannot assimilate illegal constructions that did not respect the law, that did not pay construction taxes, architects, etc. , to legal works that did go through these procedures, were built in accordance with the law, and were They paid all the corresponding taxes and expenses.

For this reason, these constructions that were built without a license, but that have been registered in the property registry, are cataloged in a special way. They are called “out of normative” (“FUERA DE ORDENACIÓN”) constructions.

This type of construction is subject to certain limitations with respect to legal constructions:

• They are not allowed more than reform works limited to conservation, safety and health. Therefore, they are not allowed to carry out rehabilitation works.
• Expansion works of the existing construction are not allowed.
• In case the construction is naturally demolished (due to natural causes, ruin, or disaster, flood, etc ,), they cannot be rebuilt. They cannot be rebuilt.
• They have problems to obtain the certificate of habitation. Depending on the region, the Town Hall might request them to make some urbanization works (in rustic) to obtain the certificate of habitation, or refusing totally, or even asking to demolish the illegal part of a building to issue the certificate of habitation.

At this point, talking about Certificate of Habitation:

• Andalucia: Do not allow the Certificate of habitation for houses or constructions Fuera de Ordenación, but it gives what they call “DAFO” (“Declaración Asimilada a Fuera de Ordenación”), where, although there is not a certificate of habitation provided, the property can be connected to water and electric in a legal way.
• Comunidad Valenciana: Do not allow the Certificate of Habitation on this type of houses, but, in rustic land it has created a system of legalization where, if making some kind of works to improve surrounding roads, pavement, and installing modern residual water depuration systems, authorizes the certificate of habitation, and, even the possibility to make structural reforms in the property, and even rebuilding rights in case of ruin.

A small guide differencing Major Works License  and Minor Works License

Major Works License

It is a building permit obtained from the Town Hall for works which require technical complexity and are economically important. For this reason, these works must be regulated by regulations on safety, habitability, etc.

To obtain the Major Works License, an ARCHITECT PROJECT must be prepared by architects, engineers, etc..

As a general rule, a major building permit is required in the following situations:

• The overall rehabilitation of housing.
• Works that affects the structure of the house (foundations, structure, façade, roof, etc.)
• Increase building height, or volume.
• Actions related to fire protection.
• Demolitions, or subdivisions.
• Changes in the use of the building or house.
• Conditioning of commercial premises.
• New construction works.
• Works that affect the common elements of a building.

Minor Works License

Minor works for reforms etc., also require a license. However, these are simple works, which do not require a project or specialized projects,  and they have a much lower cost. Examples of these can be small reforms, changes of walls or cladding, interior decoration projects, the removal of architectural barriers, change of pavement, renewal of kitchen or bathrooms, installation of heating, sewerage, plumbing and electricity, surveys, testings, etc.

An example of legalization in Valencia Region

A house built in rustica land in Valencia Region in 1979.

The property was placed in a RUSTIC area in less than 10.000 m2 (the miinum plot size to have building rights in the area). And it was built since 1979. So, it was a quite old property. Due to the fact that this is an old property, the Town Hall respects the existing constructions which, being built in less than 10.000 m2, and “out of normative”, they consider these constructions as “legally consolidated by the time”. In instance, the current edifications cannot be extended. So, new constructions on the property cannot be built. The Town Hall allows inside reforms on these kind of properties, but not extensions, constructions of other buildings like garages, pools, etc.

Also, the Town Hall might not approve a license to reform “essential” structural parts from the building like foundations, roof, etc. The Town Hall will admit to “reform” the existing house, and “repairing” the existing structure, but not “remove” from the old parts to install new ones. For example, in the case there is a natural disaster, or inundation which may affect the house on its structure, the Town Hall may not give rights to “rebuild” the property.  So, as conclusion, the Town Hall allows internal reforms to maintain the construction, but not structural reforms from bines, foundations, change of roof, etc. Due to this fact, we recommend you instruct your insurance company that natural disasters and others affecting the existing constructions has to be covered by the obligatory insurance to contract to the house on completion.

We have seen that the area is NOT connected to main sewage system.

Legal consequences of houses when considered as “Fuera de Ordenación” at the Valencia region 

 If they are not penalised before August 2010, they cannot be penalised later, and cannot be demolished by the Spanish system, and they are legally consolidated by the time.

• Existing constructions are respected in their size, but it is not possible to build a new construction element nor even to extend the existing ones.
• Also, due this fact, the Town Hall respects the existing constructions, but they cannot be extended. So, new constructions in the property cannot be built.
• The Town Hall allows inside reforms on these kinds of properties. But, due to the fact that the property is out of normative, the Town Hall will not approve a license to reform “essential structural parts” from the building like foundations, roof, etc. The Town Hall will admit to “reform” the existing house, and “repairing” the existing structure, but not “remove” from the old parts to install new ones. For example, in the case that there is a “fire”, or inundation which may affect the house on its structure, the Town Hall may not give rights to “rebuild” the property. So, as conclusion, the Town Hall allows internal reforms to maintain the construction, but not structural reforms from bines, foundations, change of roof, etc.
• One of the conditions to obtain the consideration of “out of normative” is to proof that the property has not been penalised during the 15 years after construction.

Certificate of Habitation 

Another point is that, depending on the Town Hall of the area and the individual legal conditions of the constrution and/or the plot, proeprties in “Fuera de Ordenación” may have, or not, the Certificate of Habitation, and depending on this, the Town Hall might require determinate legal aspects or works in the proeprty to obtain or to renew this certificate.

For your information, this is a document issued by the Town Hall of the area where they confirm that the property fulfils with the habitation requirements.

This property has not obtained a “Certificate of Habitation” (CH), and we have been confirmed by the Town Hall that it is not possible to obtain this certificate by the moment.

This document is also needed to connect water and electricity to the property and to make the changes of the water and electric contracts in your name.

Urbanisation costs to develop to complete legalisation process in Valencia region

In the recent future, the Town Hall may request the current owners, in terms of give a better and more comfortable use of their properties, to make/pay some works to improve the infrastructure there as streets (pedestrian areas), pavement, public lights, sewages and so forth, and even giving part of the plots to roads, pedestrian or green areas.

It will be necessary to see what kind of works the Town Hall will project to ask to the owners in the future, and who will pay for it. In this moment, a new law recently approved in 2019  (LOTUP) has the spirit to act with these kinds of group of houses in order to develop some urbanization works which are still not confirmed by the law.

Just to point out that the most expensive cost of urbanization is the connection to mains sewage system from the Town. As these properties are quite far away from the Town, it might be accepted that, instead of connecting with the main sewage system, to allow owners to install septic tank with depuration systems to filter and depurating the wasted water

The majority of the properties in the area have not official regulated or modern septic tanks installed to treat residual water. So, if the project of the Town Hall is presented in the future, the immediate cost will be to install a modern septic tank in the property.

According to the real estate agency informs us, the septic tanks do not comply with the current regulations, which happens very often.

While the urbanization plan is not presented and urbanization is not completed the Town Hall might create problems to authorize structural reforms on the property.  Existing constructions are respected in their size, but it might be difficult to obtain license or permits to build a new construction element or even to extend the existing ones.

But, if the houses in the area are improved with the urbanization works required via an urbanization plan (called MINIMIZACION DE IMPACTO AMBIENTAL), they will have the following benefits:

• The house will be considered a “totally legal” construction, so it will not be anymore considered as “out of normative”, so, it will be allowed existing constructions to be rebuilt, structural reforms, rebuilding, etc.
• The property will have the Certificate of Habitation