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Legalization of properties. Common problems and legal aspects

TLA lawyers have been for more than 15 years  dealing with transactions and cases of properties in rustic land areas in all the Spanish territory. From Catalonia (Tarragona and Barcelona), Valencia Region (Castellón, Valencia and Alicante – Costa Blanca), Mallorca & Ibiza, Murcia, Almeria (Almanzora Valley), and Malaga.

As result of our wide experience, and the acknowledege of different regional normatives, we have prepared some of the aspects to consider when buying/selling properties in both, urban, and rustic land (countryside), with special considerations to the problems that we recommend you to avoid when buying properties in Spain.

So, please, be kindly invited to find below some of the common problems which may affect the legal consideration of properties and constructions in Spain:

LEGALIZATION AND LEGAL ASPECTS

Do I need a Building license to reform my house?

Yes, you need a building license to refom your house. The type of license required for these works depends on the works to be done with the reform.

Minor Works License – “licencia de obra menor”: This is required to changes of use of the rooms, and distrubution of walls, etc. To obtain this license it is not necessary a project form an architect, because it can be applied by particulars, just explaining the works, and evaluating them to pay the taxes.

To a better comprehension, this license is applied when the works to be done int he property does not affect to the essential infrastructure of the property, like the change of the roof, the supporting bimes or structure of the building, or inside stairs.

Normal cases in which this license is needed:Reform of the roof (not to change it completely, just to renew it). Here are some cases to apply for this license:

  • To build garage, shed, or warehouse
  • To build a fence
  • To build a pool (depending on the area)
  • To build a corral, etc.

Please, note the cases described and the conditions to get the license can vary from a zone or region to another substantially.

Major Works License – “licencia de obra mayor”: This is the same license as requested to build a house, explained in the section of “Construction in rustic land”, and “Construction in urban land”. This permit is required when the works to be done in the constructions affect to the essntial parts of the building, and requires a Project of an Architect. For example, to build an extension of the house (like a new room), or to change the roof.

  • To change completely the roof
  • To build a new room extending the construction
  • To build a garage with tiles and concrete
  • To build a second floor
  • To build a pool (depending on the areas and regions), etc.

 There is not title deed or escritura for the land, or the extension or boundaries of the land are not correct.

We can find often that there is not escritura (title deeds) for some properties, and you need to establish your right to the property through a process known as “expediente de dominio” or “acta de notoriedad”. This is complex, involving publication of your claim in the Boletín Oficial de la Provincia (the Official Gazette). The difference between both process are, mainly, that the “expediente de dominio”is made in a normal process in the Tribunals, and the “acta de notoriedad”is a process made in front of the notary of the area. It is not necessary to say that the“acta de notoriedad” is always more recommendable because is a shorter, cheaper, and faster process than the other one. Usually, “expediente de dominio” is used when the situation of the land, and the ownership is in dispute with the neighbors, or is not clear. And the “acta de notoriedad”is used when the ownership is well known, and there are problems of boundaries or size of the property.

Then you need to ensure that the records of the Registro de la Propiedad and the Catastro agree, and that these are in accordance with what local custom holds to be the property boundaries. You are only allowed to build on a certain percentage of the land area. You need to check for availability of utilities – especially water and electricity. You need to check for servidumbres de paso (rights of way) as these cannot be blocked. Then having “created” your property, it is necessary to register it for the first time. For all these matters you need the services of your Spanish Solicitor.

It is also frequently that the size of the land is not the same as the real plot. In these cases, again, an “expediente de dominio” or “acta de notoriedad” must be made in order to confirm which are the real boundaries of the land, and to update both, Spanish catastro and Spanish land registry.

The land is duly registered but the existing house does not appear in the deeds:

Sometimes happens that the house (construction) itself may not be registered, either for historical reasons or because whoever built it wanted to avoid tax and expenses for registration. Generally in such cases all that appears in the land registry and the offiicial paperwork is the land.

In some other cases, the construction is registered (appear in the deeds and in the land registry), but not as a “house”, maybe as storehouse, or shed (“albergue”, or “almacén”) or some other similar construction. This is not sufficient to have the construction legally declared as a “house”. This situation should have been highlighted in the pre-contract stage, as it must be clear from the nota simple.

In these cases, before you buy the property, your Spanish Solicitor – or the vendor – must to register the house for the first time, if it not registered yet, or as a “house2, if it was registered but as any other similar constructions (shed, storehouse, etc). This is done by what is called a “declaración de obra nueva” (declaration of new works). And this must be done even though if the house is there for hundreds of years, because, as per the Register is concerned, this is a first registration, or at least the first registration as a house.

The “declaración de obra nueva” (DON) is a process of inscription of a building or construction in the land registryThe process is very similar as when the house is new, the differences are the documents required, and it is reduced to the elaboration of a deed from the Spanish notary, in which the new building is declared with the proper description of the rooms, service, size and measurements, plans, etc.

If the house was recently built (usually less than 4-8 years, depending on the area), the documents are exactly the same as considered as if the house is new, which are the following:

  • The deeds of the land on your name- To proof the ownership of the land.
  • The Building Project from your architect – To proof the size, description, etc., from the house and the building.
  • The Building License – To proof that the property obtained the proper permission from the Spanish authorities.
  • Final Works License – (CFO) Licencia o Certificado Final de Obra – To proof that the Works in the Spanish property are finished.
  • Ten Years Insurance (Seguro Decenal) – If you have finally chosen to contract this insurance. If not, you must indicate to the notary that you have not proceed in this way, in order to inform the buyers and obtain the confirmation that they agree.
  • Certificate of Habitation from the Town Hall – To proof that the Spanish authorities considers the building as a Spanish “House”.

But, if the house is not new, is an old house (more than 4-8 years, depending on the area), then the documents required are different. In this case, as the Spanish house is old, it will be necessary to proof how old is it. For this, there are several systems:

Certification of age made by an architect or engineer or “Certificado de Antigüedad”: If the house is not declared in the land registry, nor in the rest of official registries like the Spanish Catastro, somebody must confirm to these institutions how old is the construction, and which is its size, and description (how many square meters, how many floors, how big is, etc.). For this, in some areas of Spain, it is required the property to be inspected by an specialist who will confirm approximately the age of the building with a personal survey made in the property to check the estate of the house, and considering the rest of evidences like registries and records at the Town Hall, and other public or private database.

Although it is not applied for the Spanish laws in order to make the DON, the certification of the architect should be accompanied by the drawings or plans for the house, in order to proof the measurements. The plans will be very useful in the future to declare the house in other registries like the Catastro, or the Town Hall.

Some people confound this certification with a “survey”, or with the “evaluation” made from the bank in order to approve an eventual mortgage. As you can see in this report, the certification of age from the architect (sometimes engineers) is to measure the house, to detail the description, and also to provide an approximate age of the property. This certificate, is very specific, and it is used expressly to declare the Spanish construction in the land registry with the Declaración de Obra Nueva process.

“survey” is made by professionals, who can be architects or not, who just indicate the situation of the house, and the estate of the construction to detect defects in the construction, and it is used, mainly, in the process of purchase or acquisition of a property. In fact, this is something which is not used when buyers and sellers are Spanish, but, it is widely used in Spain when the buyer is form other nationalities, like British.

And, finally, the “evaluation” made by the mortgage bank is different from the “survey” and from the “certification of age” because it is made by professionals, usually not architects, just to “evaluate” the property. It means, that the bank, as the creditor of the loan, wants to know how much value it has before to provide the funds of the loan, mainly to check if the property will be enough guaranty to cover the risk and the funds borrowed.

Certification of age from the Town Hall.”Certificado de Antigüedad del Ayuntamiento”. This is a certification issued by the Town Hall. This certification is not so detailed in the description of the construction as the one made from the architect, but, it serves to confirm to the Spanish land registry, and to the notary, what is the exact, or approximately, age of the construction.

Certification from the Catastro. “Certificado Catastral o del Catastro”. In some areas, the Catastro has a detailed database from the properties, construction, and land of the rustic zones. In such a way that, although the land registry cannot be informed about the current existence of the property, the Catastro, due to its “automatic” or “inspection” activity (the Land Registry only act when the interested parts inform about a determinate transaction, it never act by his own inspecting, or acting automatically), has detected previously the existence of the house, and can confirm the age with more or less exactitude. In these cases, and depending on the areas, notaries and land registries accept the certification from the Catastro as proof of the existence and age of the property in the process of DON.

 In both cases, I mean, in the case of a relative new, or old house, the documents required are provided to the notary, who will prepare the proper deeds which be called Declaración de Obra Nueva, which must be signed by the owner of the land. Once the deeds are properly signed, these ones will be the current deeds of the property, and the previous ones, which contained just the land, will be cancelled.

Then, once you have all these documents, you need to bring them to the notary. The notary will prepare the title deeds of the construction, and you will sign them. This process is called Declaración de Obra Nueva. This will declare that, over the pre-existing plot, there is now a construction, which is a house.

Then, you will need to bring these documents to the Land Registry to make the proper modification of the inscription of the land, now including the house, and the house will be legally complete.

So, the expenses of the DON will be, mainly:

  • Notary fees to prepare the DON deeds
  • Land Registry fees to inscribe the DON in the inscription of the land
  • Stamp Duty – 1, 1,5, ,2 % (depending on the area) of the evaluation of the property

 In these cases, it is highly recommendable to you to negotiate with the vendors that they register the house with the proper DON before proceeding with the sale. In fact, if you are getting a mortgage, the bank will not be able to value the property until the house has been registered using the DON, because until then (1) it does legally exist; and (2) until it is registered there is no official designation of what the property is exactly (size, land area and boundaries etc.). Also it cannot complete a mortgage on property that is not registered. So in this case there is no choice: the vendors must register it before you can buy it.

The land is perfectly registered in the deeds, and the house appears, but its full extension is not declared , or there are other elements not declared in the deeds like garage, or pool, or storehouses, etc.

These cases are really common in rustic land. These are the typical cases in which, in a determinate time, somebody inscribed and declared the land, and even also the house, but they did not include other parts of the house, or other elements, because they were built after.

For example, the owner who, after buy the house, builds a pool, or a garage, or extends the house with a new room, or a new porch, or a new floor, or terrace, etc.

These cases are extremely problematic, because the process to declare and update the deeds with the new extension requires an specific study of the matter.

There are so many different probabilities and requirements, depending o WHAT is the size of the landWHERE is the property located (Valencia, Almería, Alicante, Murcia, Castellón, Granada, Cádiz, Málaga, etc.), with extremely high differences between regions, and even between cities; WHEN these extensions were made (4 years before, 10 years, 20 years), and HOW they were built (without building license, with reform license, etc..), that it is absolutely impossible to give a valid overview over this matter which could serve to affected owners as guide.

What is  «FUERA DE ORDENACIÓN» – OUT OF NORMATIVE?

“Fuera de ordenación” is an OLD construction, or an OLD part from a construction, which has been built with no license, it is not fulfilling construction normative, and that it cannot be legalised.

  • An old construction: The construction must be built more before the time that the Spanish administration has to react against the construction (demolish+fine).
  • Before 2014 : 4 years from the time of construction
  • After 2014 : 15 years from the time of construction
  • It cannot obtain now a license to legalise it

Positive consequences:

  • It can be PATRIMONIALISED: It can be part of your patrimony or personal Wealth. It can be registered at the land registry office, obtaining a mortgage, sell it, inherited, etc.
  • It is a construction which is now legalised and legally consolidated by the time, although not fulfilling with normative. So, from a legal point of view, if there are not any fines affecting the property currently so,  there are not any actions that the Town Hall can take against this property due to its age, and not possible to be demolished by the administration.

Negative consequences:

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 kind of properties, but not extensions, neither constructions of other buildings like garages, etc.

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.

Eventual problems when renewing/applying CH: Properties in Fuera de Ordenación may find problems in the future to obtain/renovate CH.

What are SEMI – CONSOLIDATED URBANISATIONS?

In this report we have explained about differences between URBAN LAND and NON-URBANISABLE (RUSTIC LAND).

In relation to URBAN LAND, we were explaining that this is a land in which it is authorized to build with determinate specifications contained in the “Development Plans” of the city or area (Plan General de Ordenación Urbana), or in specific areas of urbanization called “Partial Plans” (Planes Parciales), etc.

This land has all the facilities and requirements to live there in high density of population, like the proper water and electric supplies for the properties and constructions, and public electric and water. And other supplies connections, like sewage, gas, telecommunications, etc.

Urban Land or “Suelo Urbano” is the land of cities or village or urbanizations and it uses to have the proper access by roads, with pavement, streets, commercial areas, health assistance, schools, colleges, sport centers, etc.

But, talking about Urban Land, there is an important difference between Urban Land “CONSOLIDATED” and “NON CONSOLIDATED” or “SEMI-CONSOLIDATED”.

CONSOLIDATED URBAN PLOT is a plot where all the necessary urbanization infrastructure has been completed, and the plot has all the services to be considered as “urban” (electric, wáter, road Access, sewage, etc.), and has already given all the necessary space to the public administration to install all this urbanization infrastructure. This plot has participated on the payment of the infrastructure, and already given  (if necessary) parts of the land to be used for this public infrastructure.

If the plot is not built, then, it will be a plot with the proper rights of building defined by the current construction laws.

If the plot is already built, then, the existing constructions, if built following the constructions laws, will be totally legal Properties, as the ownership rights will be absolutely protected from the public administration for both, land and construction.

NON CONSOLIDATED URBAN PLOT is the opposite. Is a plot where there are not installed all the necessary infrastructures to be considered as “CONSOLIDATED”.

So, if the plot is not built, then, before obtaining the building permission, the Town Hall will request to complete the urbanization infrastructure in the area, following the existing construction laws, and/or the plot has not given the space to the public administration for the installation of this infrastructure.  So, eventual costs of urbanizations may be pending on the land, and eventual parts of the plot may be affected by the urbanizations rules, and then, consequently, being forced to “give” to the public administration in order to install such as infrastructure.

If the plot is already built, then, eventual charges of urbanization may affect the developing and the use of these constructions, and these constructions may be also affected if they are in the middle of the future infrastructure areas.  These cases are the ones in which Properties were built before the areas was converted into “urban” (because they were quite old), or simply because these constructions were built without the proper building permission (illegal).

In these cases, the ownership rights on the plot, and the eventual constructions, are not consolidated by the owner. In other words, the Public administration may have faculties to obtain part (or total) of the land, and constructions may be affected when adapting the plot to the urbanization requirements.  So, both, plot, and constructions, are not totally integrated in the ownership rights from the owner, as both may be affected by the urbanization requirements and projects.

Inside the NON CONSOLIDATED areas, there is also an special classification called SEMI-CONSOLIDATED .  Semi-consolidated areas are those ones that, being “urban”, they are in one of the following cases:

  • There are some urbanization works done, but not all of them.
  • There are some parts of the land given to the public administration for public infrastructure, but not all what the laws request.

These are the typical cases that we may find in areas from Valencia, Alicante (Denia, Campello, Benidoleig,  Onda, Javea, Benissa, Moraira, Calpe, Gata de Gorgos, etc.), some others from Murcia, Almeria (Almanzora Valley, Vera, etc.), Málaga, and Sevilla.

Usually, these are areas where  the land was always considered as “rustic”, and with the time, there were progressing the constructions of houses with a high density of constructions (following current normative, more than 6-8 per hectare). In these areas these constructions are provided more or less with determinate infrastructure of water, electric, public access and roads. Depending of the case, we may find areas where the infrastructure installed is total, and other areas in which is poorer.

In this cases, in Semi-Consolidated constructions use to be legal. And “legal”, because they were built with the proper building license, or because they were legalized after built.

In these cases, then, the owner “consolidates” the ownership of the construction,  but not the ownership of the land. So, the public administration cannot do anything against the construction, but the land may be affected by eventual parts of it to be given for urban infrastructures, or affected by urbanization charges.

Typical problems that we may find in these properties are:

  • That to extend, or to build houses in plots inside these areas, the Town Hall may request to give some of the land to be used for the installation of public infrastructure (pedestrian areas, sewage connection, wiring of electric, gas, water, etc.)
  • That the owners are requested to pay part, or all, the expenses of urbanization of the area (connection to sewage, water, electric, installation of modern septic tanks, giving part of the land for public roads, etc).

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