Building in Spain

What is or isn’t allowed?

Unfortunately it seems that nobody really knows exactly what is and isn't allowed! There are so many differing stories and the general rule, if there is one, seems to differ from town to town and region to region or some may say Town Hall to Town Hall!

The reason for this differing opinion with regards building is that it seems in Spain that each Town Hall seems to have a certain amount of independence as to what it will and will not allow. In one place certain things are allowed without it seems any problem, on the other hand, the same will not be tolerated in other towns.

It seems that in one area or town you need a license to do something as simple as painting your house whereas in another area you could paint your house without problem as long as the colour was right for the area.

In some areas buildings that have no licences are sometimes pulled down and in other areas it seems that vast urbanisations can be built without problems on vast areas of land that are not designated for building, This though is changing and fast!

What about Pools and garages then, it seems that even if your neighbour built himself a garage without permission and never got a fine - it doesn’t mean that you could do the same. Although it is possible to try but not without certain risk. In my experience it is often what and who you know. But if you do build anything without the proper permissions you do it with risk, many people do this (and get away with it) but thats not to say you will.

To be safe you should really check with the local Town Planning at your Town Hall. If you do this and they refuse permission remember they are now aware that you were and maybe still plan to do this without permission and they can make their own checks to make sure you abide by the law. If you build without permission you run the risk of a fine of between 20 to 40% of the build costs or at worst they could make you take the offending building down.

You build a house you now need 10,000 m2 of land if it is rustic and you can then only build on 2% of this. So, if you have 2000m2 and have a house, pool and another building you are already probably over your percentage so planning permission will probably not be given.

Only a few years ago rules were not always strictly adhered to but now it seems the law is getting tougher - partly because there is so much construction going on now. People who in the past built without permission and got away with a fine may or may not be so lucky now so you really have to weigh up the pros and cons and what it is you are deliberating on doing.

You may be fined and or made to demolish the structure as well! Get proper advice because it does seem there is no easy answer and as in all things Spanish command of the language is a great help in all legal matters or employ an interpreter.

If you do decide to build without proper planning permissions you take a risk no matter how large or small the building is. Be it a wall, building or roof for example, it is still a risk, even though many people, including us, I may add, have taken it............ So be warned that at worst you could have your new construction ordered to be demolished or you could be imposed with a fine!

...You have been warned!

Now.......... from early 2007 a new law has come into play......

Royal Decree 1093/1997

Extensions and permissions

There has been a change in the law recently and it seems that 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 the case. Whilst the town hall can still be time-barred from raising a fine the land registry can 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 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.

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. Do not take an agents word for it either you need an independant person who is qualified to tell you what you can actually do. There is too much in it for an agent (who is only selling the property) to perhaps stretch the truth as to what you can do.

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.

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 was for small or minor works when you have actually had big or major works carried out there will 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 the town hall has 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 that are already built and exeed an age to be illegal already exceed this build size so you just would not get planning in any case.

What about Building a house from scratch or renovating a ruin?

This is normally dealt with by the Town Hall which deals with the area that the ruin stands in . In principle if the land that the ruin stands in is non-urbanisable land (which is normally the case with "rustic"land) the Valencian planning law (LRUA) is not applicable. A new law regulating non-urbanisable land is applicable that entered into force in December 2004 which is more restrictive than the previous law and grants non-urbanisable land a special protection if the local town plan does not make any other classification.

Therefore amongst other restrictions you would need to know the dimensions of the plot of land as in accordance with this new law, the minimum surface area of the plot would need to be 10,000 square meters to be able to build a house on it.

The renovation of a ruin then is the most common way of avoiding this restriction that the new planning regulations impose and in some cases a license to renovate an existing ruin is used to build a villa and a pool. Obviously this is done knowingly and is in breach of planning regulations so really it would be advisable to explain to planning what is intended and preferably with an architects plan as it would be a little risky to go ahead and purchase before you are sure of what could be done

Another concern is the supply of Electric and Water (which also would depend on the Town Hall granting a certificate of Habitation) which means a visit from the local Town Hall Planning to check that all is in order and that the construction has been built in accordance with town planning permission that has been granted.

There is a law of Royal Decree 1093/1997 that permits the inscription in the land Registry Office of those properties that are more than four years of age (that have not had a file opened due to a breach of planning permission) as long as an architect certifies the age of the property and gives its description. Here again this is a subject that can be abused and the reason why some towns get away with non-legal buildings getting licences as it is all down to the discretion of the Town Hall. So, once the period of four years has expired (from the date of completion of the construction) without the town hall having taken any action due to breach of planning permission or lack of a licence, then the property would be registered through the passing of time.

Title of Land

It is not uncommon with properties that are situated on agricultural land for the present owners to never have seen a reason to have their title registered to the land registry, and when they eventually sell they expect purchasers to take care of this problem.

The first registration of the title to a property in the Land Registry can be achieved by obtaining what is called a descriptive and graphical certificate of the property from the catastro. This is an institution that confirms the physical description of the property and states who is registered as the rateable owner and in many cases this may not be the same person (in some cases it can be the parents or even grandparents). This certificate is an essential requirement to protect any third parties that may have a claim to make sure all the documents are in order so that a first deed can be granted which is then registered in the land registry - although it will not have effect until two years have passed. The consequence of this could be that it would not be possible to have a mortgage on the property until the two years had passed but it could be resolved eventually.

Get a Good Architect & Solicitor

Again a reminder to: get a good architect and solicitor and if you do not speak the language a good interpreter.

In order to build a house from scratch or to reform an existing property you are taking on a huge project and at some point in the process a headache or two, so unless you know exactly what you are doing and have a good comand of the language, please be aware exactly what it is you are taking on.....

Having said this many people do manage to do just this and eventually get what they wanted - some without any or many hicups, however, be aware that in most cases you will have to overcome obstacles that will probably make you at times wish you had never started!

Buenas Suerte!

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