So what do I, as a potential buyer need to know...?
Legal or Not?
The legalization of a construction is different to it simply just being described in the title deeds. In the absence of planning permission, quite common in particular areas, where laws state that a dwelling cannot be legal after being built after a certain date on less than 10,000 m2 of land! Properties are constructed in accordance with the local planning regulations and can then be registered in the land registry by virtue of the granting of a deed before the notary, that is based on a certificate granted by an architect which reflects the number of floors, total area of the plot and M2 of the construction plus any other usable element with which to recognize the building. At the same time the architect must make a reference to the age of the construction as if it is more than four years old.
The right of the local Town Hall or corresponding authority to take action due to any breach of planning regulations would have been already prescribed, if after 4 years no action has been taken the property can then be registered as a "legal" construction. Properties that have had this rule followed often do not and may never have a certificate of habitation, but this does not mean that a property older than four years is illegal!
Try to understand why below...
Although a property could in the past be built without a proper building license, it does not affect it’s legal situation, because, the property in fact still in most cases is LEGAL, if it is duly inscribed in the land registry sometimes in cases of extended properties that perhaps were built in the first instant as Almacen (farm shed or small casita or Albergue) all that is left to do is to update the size
To do this an architect can go to the property and re-measure and do a new set of plans which are then used to update the registry
Of course you still have to check there are no fines connected to the property
- With certain identification documents you can obtain a certificate of habitation or a document equal to a Habitation certificate that states the property is legal due to its age for this you need the following
- Photos from the house
- Certification of an Architect confirming an age of the property older than 4 years.
- Plans of the house
- Certification of the Town Hall confirming that there is not any fine outstanding
Please note: There is not any law in Spain which requires the Certificate of Habitation to sell any property. This is only applied for NEW BUILDINGS. If we are considering a house over 4 years old often in this area with the country properties they just never had one and maybe never will!
If your older property has one then you are lucky or live in a municipality that is more organized than others.
If in any doubt don't buy anything you are not completely satisfied is legal. Let your solicitor earn his money and do all the possible checks on the property to make sure you are as sure as you can be. There are stories about people losing their homes and some ARE true! BUT there is a big but here, there are many people here who think they know everything and although most mean well and think they are trying to help, however when people are NOT fully informed sometimes you end up with the wrong information and they then fully understandably go into panic, so take everything you hear on board but please check it out with the people that are qualified to advise you of the full facts..
Royal Decree 1093/1997.
Extensions and permissions
Up until now the administrative regulations on extensions to property in particular their legality meant that if there had been any illegal building works i.e. any type of additions to properties without the proper license from the town hall (for example if you obtained a minor or small works license but were actually extending your property and really needed a major works license) then after 4 years from the works being completed if the town hall had not raised any complaint or fine then they would be out of time for doing so. In addition, and this is the major difference, the land registry would then be obliged to register the extended building.
It now seems that this is not always the case everywhere so you cannot just take this for granted. In this area we have up to now seen no evidence of this happening and we have happily updated many older properties with the help of an architect to its new dimensions, but we always check first as whilst the town hall can still be time barred from raising a fine, the land registry could now refuse to properly register the extended property so you will be left with a title deed (escritura) that does not accurately reflect the true size of the property. Which in reality may mean that anyone wishing to buy the property after these works have been carried out would have to accept the property as it stood i.e. without the true dimensions being registered, this may be acceptable to the buyer or not and unless of course the new buyer needed a mortgage and then the property may not reach the true valuation for the asking price of the property as the bank will only value the registered dimensions i.e. those on the deeds and not what actually stands. But this still does not mean the property is illegal, due to its age.
The answer would seem to be to ensure that you apply for the correct license in the first place if you are doing anything other than very minor works and to do so you need to have an architect prepare a project that accurately reflects what work is to be carried out. That project has to be submitted for approval by the college of architects and then to the town hall for the license. Only then, once the license has been granted should any works start. Once the works are finished you will need certificates from both the architect (a fin de obras) and the town hall confirming that the works have been carried out and completed properly and in accordance with the project and license. Without these documents the land registry will not register your extended property.
I know some of this may sound obvious but it is easy to mistakenly accept the word of the builder and architect that there will be "no problem" and assume they are dealing with matters properly and rely on verbal assurances. Unfortunately quoting such verbal assurances cuts little ice with the land registry.
Our advice now is to make sure you take firm control of the situation and insist on confirmation in writing of any important assurances, check the plans carefully before they are submitted to the college and town hall to make sure they match what you intend to build especially when you are building from new.
You could hold back a reasonable amount of any architects fees until you have the approval from the college of architects and the license from the town hall and make sure it is the correct form of license. Only then give the go ahead to the builder to start work but make sure he has read the architect's project and will be building in accordance with it.
If you or your builder or architect have not followed the requisite steps correctly in the first place then it is unlikely you will be able to get the necessary documents once the works are completed. If for example the work carried out differs from that in the architects project and/or the license you obtained .as for small or minor works when you have actually had big or major works carried
Out there may be problems. In this case you need to get your architect to prepare a modified project showing what has actually been done and then submit it to the town hall for "modification" and see what the town hall comes back with in terms of fines or required action. Once they have been dealt with, if that is possible, the architect and town hall should then be able to give you The final certificates. Unfortunately this approach creates a worrying period of uncertainty that is best avoided.
It is also important to note that depending on the town you are applying in you may not in fact get permission in the first place especially if you are asking for permission to extend a property that is on less than 10,000m2 on rustic land as already there may be too much built on the land. For example on a plot of 10,000m2 only a land surface area of 2% may be built on, any more than this if it is not already stated in the deeds would be illegal.
In the case of plots under this size most properties already exceed this build size so you just would not get planning in any case. This is why so many people just get on with it and take the risk. The law is now tightening up so it is always a risk, having said this it always has been!
What could happen if you do buy an illegal property i.e., a property under 4 years old on less than 10,000m2
Properties in Nature reserves are under bigger threat…
In the case of new builds less than 4 years old!