Is Your Property Legal?
Real Time Realty is not only about showing properties in “Real Time” through our on-site or prepared, commented video tours of properties;
It is about showing their REALITY on all aspects, also the legal and Town Planning part.
Since 1994, it is our utmost aim not only to find the best suitable and nicest possible property for the specific search criteria of our clients, but also that it is legal, and that they buy it trouble free. Therefore, we would like to explain a few issues related with property purchase, documents and questions that affect the legality of properties and which we deal with for our clients.
We and our Legal Advice Department are also always at your disposal for any further questions or requests to double check on the legal status of any property or to legalize its situation, if needed.
The discussed themes on this page are the following:
- First Occupation License;
- “Certificado de No Infracción Urbanística” = Certificate of Non-Infraction
- “Certificado de Antigüedad” = Antiquity Certificate
- “Declaración de Obra Nueva” = New building declaration
- Special case Marbella.
First Occupation License
This is a license granted by the Town Hall after the completion of any building. You may know this process from your own country. Once a property is finished, an inspector from the Town Hall will visit the new building to assure the following points that are necessary to obtain this license:
- That the property has been constructed according to the project and building license that was granted
- That it has been constructed in a secure and safe way to be able to live in it
- That any infrastructure work requested for the property, or around it, in its urbanisation, has been carried out correctly.
Basically, having this license granted, for which you have to pay a fee to the Town Hall, means for you that the building is “legal towards the Town Hall”.
Although this license has been established in Spanish Law in 1957 (first called "Cédula de Habitabilidad" = habitability certificate, later changed into "Licencia de Primera Ocupación LPO" = First Occupation License) still many even relatively new built properties do not have this license. Lawyers before simply thought “it was not necessary” to apply for it. You cannot imagine how many times we still hear this answer from lawyers, when we ask for the First Occupation License of the property of their clients, where they have dealt with the purchase due diligence and paperwork in the past.
It is unfortunately a fact that the boom made it possible to sell many properties without having this license in place (and still is), yet lately clients are more and more informed through the internet, for example, and more lawyers also have started to be adamant and ask for it, when they deal with the paperwork of a property purchase.
This is due to several problems you can experience now, if you do not have the First Occupation License for the property you want to buy.
- Reselling is more difficult: It can be a problem when re-selling, if a purchasing client requests it, and you do not have it, as it can destroy the sale.
- You cannot rent short term legally: If you want to rent a property on a short-term basis (time periods of less than 2 months), you are obliged by law to register the property for this purpose at the Andalusian Tourism Ministry. In order to be able to do so, you need the First Occupation License. Therefore, it is a VERY important document. If you would not have it, you could not rent out on short term in a legal way.
- Less or no finance from banks: It can be a problem if you or the buyer would like to finance the property, as banks will ask immediately for this license as part of the documentation, they require to give you finance. If it does not exist, a bank valuation is normally reduced in value. Therefore, the amount of mortgage granted would be less. If the legality of the property cannot be explained or proven in another way, not having the First Occupation License may even lead to not being financed at all. This would mean that the range of possible buyers for your property is being reduced to only cash buyers, or buyers with more own capital and who accept this legal situation of the property.
- Service contracts: Another already existing problem is that water and electricity companies start creating problems and may not give you contracts for their services, if you cannot present this document.
The reasons for not obtaining a First Occupation License, in case of a villa, for example, can be due to the property having been built differently, most of the times bigger, than the original project, or too near to the borders of the plot. Yet, the above-mentioned infrastructure check should not be forgotten! It is important that the urbanisation, or at least the plot of land the property is located on, has got all its infrastructure work in place and correctly carried out. The plot must also have been qualified for this type of construction.
If such license does not exist yet, it can still be applied for. The possibilities to obtain it depend on whether the property fulfils the above-mentioned points. In case it would not, you need to see whether this can be amended with some actions you may have to take and the Town Hall would inform you about, so that after carrying out any amendments or additional building or infrastructure works you could obtain this license. Yet it takes time, paperwork and fees, in addition to maybe some building costs.
In our experience, the rules to obtain this license, in time have only become more and more detailed and difficult to fulfil, which is why we would recommend you trying to obtain it as soon as possible and definitely before you try to sell a property, as not having the First Occupation License very likely makes the sale more difficult nowadays.
Yet, there are situations, where it is simply too late (or impossible, like in rustic land = agricultural land = no urbanizable), or due to new rules, physical situation and realities of the property, requests from the Town Hall cannot be complied with any more.
In such cases, and to show that your property is at least “as legal as possible” for a possible sale, there exists the following possibility:
Certificado de No Infracción Urbanística
This is a certificate that we very often apply for, even though a property has a First Occupation License, yet may already be of an old date, or amendments to the property may have been carried out after having obtained this license, and we want to know whether the property still does not have any legal problems with the Town Hall.
Why do we apply for it? What is this certificate about?
It is a document that states whether there are any legal issues or maybe even court or penalization cases existing against this property started by the Town Hall. Thus, having this certificate protects you legally even more than only having the above explained First Occupation License.
Imagine a property obtained its First Occupation License when it was built in the 90s, but afterwards the owner has extended it to more m2 than the General Plan would allow building on the land and maybe it has even been attached nearer to the boundaries than allowed. These things have happened and still happen nowadays.
In case the owner does not have a First Occupation License and wants to apply for it now, he would most likely not obtain it for this amended property, as it is now not compliant with the original building license and building rules (unless he gets to an arrangement with the Town Hall and takes down the overbuilt parts, for example).
If in the time, since this building/extension has taken place, the Town Hall has not started any legal action against what has been incorrectly carried out, you can obtain the “Certificate of Non-Infraction” = “Certificado de No Infracción Urbanística”, which means that nothing can be done against it any more from the Town Hall, if the prescription time has passed.
It is important to know that infractions of such kind only prescribe after 6 years. This means that you are only safe, if the Town Hall has not started any legal actions and minimum 6 years have passed by, after the building / extension works have been finished. Then the Town Hall cannot do anything against it anymore and the property (or its newly added parts) would not be torn down, neither could they ask anymore for a fine to be paid.
Please take into consideration that it is important that you can proof by official aerial pictures, and through other means an architect will need to certify, that the additional m2 of the property REALLY have existed more than 6 years ago. It is not enough to “say” they have been built 6 years ago.
In addition, it is foreseen to increase this time frame for prescription to 8 years in an update of the Andalusian Building Law (LOUA) that is currently being prepared.
As said above: the rules are only getting more difficult to be fulfilled. Therefore, we strongly recommend you taking actions the sooner the better. Our legal Department is very happy to help you on such issues. Please do not hesitate to CONTACT US for any question or need you may have.
In case less than 6 (8) years would have passed by, there still exists the possibility of the Town Hall finding out and maybe only putting a fine onto the property, or requesting the additional building parts to be removed and to re-establish the original building status.
Whether or not a property (or new parts of it) really already existed more than 6 (8) years ago, can be shown by a “Certificado de Antigüedad”, to be issued by an architect, in which he has to proof very clearly with aerial photos and the cadastral certificate, that this property existed already exactly in the way it is now for more than 6 years (when the new Law is approved: more than 8 years).
If the time of the building works can be proven to be older than 6 (8) years, the additional m2 can even be declared and included into the Land Registry through a notarial deed of “new building declaration” (Declaración de Obra Nueva).
We, and our Legal Advice Department, are more than happy to help you with such a new built declaration being organized and registered at the Land Registry, or with obtaining the Certificado de No Infracción Urbanística, or with applying for your First Occupation License, in case you do not have one yet.
The better the legal situation of your property is, the more chances and fewer problems you will have, if in the future you may want to sell it. As laws, rules and regulations get more and more difficult year by year, we strongly recommend taking action on these issues as soon as possible.
Please do not hesitate to CONTACT US.
Special case Marbella
When we look at properties in the area of Marbella, especially apartments or townhouses, yet also villa developments, we have to take into consideration that more than 16.500 properties have been declared “non-legal/a-legal” in 2015. The Town Hall tries to avoid the word “illegal”, as this would mean it has granted illegal licenses.
As you may have heard over the past years, in Marbella many properties were built on plots of land that were not qualified for that use, mainly increasing building density and the occupation of the plots, often having built apartments or townhouses where only independent, low density villas were foreseen before.
This was due to late Mayor Jesús Gil y Gil having allowed issuing building licenses for building that was NOT foreseen in the General Plan (PGOU) of 1986, which is the ONLY LEGAL ONE the Andalusian Government had accepted. “Punctual amendments” were carried out by the Town Hall in the years he was Mayor, to “allow” such complete changes of use, increased build ability and occupation, the number of maximum floors, etc. The changes of the type of properties that could be built on plots went even that far that properties were built on public plots, for example, on green areas or plots foreseen for public infrastructure buildings (educational, sports and social use).
Therefore, in 2010 a new General Plan was approved for Marbella, in order to stop these actions and to try to find a solution for handing back lacking public plot areas to the Town Hall. For the above mentioned, approximately 16.500 properties (mainly apartment or townhouse developments), the new General Plan had foreseen that they could “COMPENSATE” the Town Hall for having built more m2 than the allowed ones. The procedure would have been to buy plots in their area and to grant them for free to the Town Hall to have more infrastructure plots again (for green zones, sport equipment, social services). This way the communities of affected properties could have "normalized" their situation and also obtained a First Occupation License which nearly all of them do not have. In reality it was a new General Plan that tried to legalize the situation those illegally granted building licenses had created to the now private owners of the properties and somehow find a solution to what had happened in the past and achieve that Marbella would have the missing public equipment plots, the developers of such developments should have granted by Law from the beginning, but were not forced to do so.
Thus, in reality those developers should have carried out the compensation payments, but often they had already either disappeared or declared bankruptcy, which is why at the end of the day the compensation payment could have been requested from each single property owner. Actually, the affection of each property was already registered as burden in its Land Registry details, despite of the then Mayor saying “they would not go after the private, new property owners”.
Yet this General Plan (PGOU) of 2010 was challenged in Court and the Supreme Court declared it null and void in 2015. Not only had it several administrative mistakes in its documents, but it was also considered as unfair to let private owners now pay for what the Town Hall had allowed to overbuild, by granting building licenses that were against the stipulations of the only legal General Plan of 1986.
Another reason for the court to revoke it was that the plan was “not planning the future development” of Marbella, an aim a General Plan must have, but it more tried to “sort out the illegalities of the past” and somehow legalize the overbuilt properties.
Therefore, the General Plan approved in 2010 was declared null and void in 2015 and the currently only legal General Plan is the PGOU 1986, which means the town planning and any new licenses now have to obey to VERY OLD PLANS and RULES and rules of about 34 years ago, until a new, legal General Plan will be approved.
At the point of writing this website, a group of legal specialists had been working on trying to find a solution to issue a new General Plan on a legal basis that could / or not include the existing 16.500 properties mentioned above, but would also not be revoked again by the Courts, due to it maybe again not fulfilling the existing rules or laws for the elaboration of such a new General Plans of a town.
This group of legal specialists has come to a conclusion and final report. The Town Hall of Marbella has decided that its own architects will elaborate the new PGOU with some external help.
It normally takes approximately 5 years until a new General Plan is through its whole process of planning, 3 steps of approvals and two timeframes during which it has to be presented to the public for allegations, and during which you can present protests against it, if necessary.
Yet, in spring 2020 the Town Hall of Marbella thinks that they could have the new plan approved in the course of the year 2022.
Please stay tuned, as we will keep you updated about the phases and news regarding this very important development of a new General Plan for Marbella via our Facebook Page, in our News here on this website and please, also follow our YouTube Channel.
What is the solution, if I would like to build in Marbella in the meantime?
We are here to help you understand the legal and Town Planning situation of each property, before you purchase.
New licenses for villas
The Town Hall of Marbella has carried out an “improvement” of the building rules of the General Plan of 1986, to help in the meantime as much as possible, that properties, especially villas, can still be reformed or newly built. Yet all depends very much on how far the infrastructure of the area / urbanization has been planned and carried out in reality. Depending on that status, there will be areas in which you can obtain licenses, as the plots were already qualified as urban consolidated according to the General Plan of 1986 (although unfortunately those are very few).
There are areas where the infrastructure project has not been approved in its 3 approval steps and where it has not been carried out in the right way, such as article 55 of the LOUA (Andalusian Building Law) requests (remember a new, updated version of this law is on its way).
Depending on how well or bad the situation is, especially regarding general sewage treatment, road status and width, existing pedestrian walk ways, street lights, water, electricity and telecommunication connections, etc., the Town Hall sometimes can give building licenses or not. Sometimes it will only be possible subject to owners carrying out certain works that are still missing for this plot only or could also be of wider affection within the area. It is important to understand that the Town Hall is obliged to fulfil the stipulations of article 55 of the current Building Law of Andalucía (about correctly carried out infrastructure) to be able to legally grant such building license.
16.500 properties in previously so called “compensation cases”
Regarding the mainly apartment / townhouse and some villa developments that are affected by being part of the ones declared as “non-legal / a-legal”, Real Time Realty, with its long time Expertise as Town Planning Experts, always checks whether or not a property you could be interested in, was/is amongst those developments.
We check whether or not it had obtained its First Occupation License, whether or not this First Occupation License is still in place or has been withdrawn afterwards (as many have), whether or not there are still legal Court Cases going on regarding the building license granted in this case and what its current legal position is in the above explained situation of needing a new General Plan for Marbella.
Since 1994 we have always worked with the General Plan of 1986, and are absolutely familiar with its plans and building rules.
We have also worked with the PGOU of 2010 that was declared as null and void in 2015, already informing our clients about all the developments that were then subject to the compensation payments.
Therefore, we are now also able to still tell you which ones were in such situation or not and where we will have to pay additional attention regarding their legal status.
The final solution for such developments will come with the new General Plan Marbella’s architects are currently working on. Within its development time the public has several possibilities to present allegations. Therefore, it is important to follow its process, check the intermediate advanced plans and be prepared to present such allegations.
For all property owners it is important to follow what happens during the design of this new plan regarding their property and its surrounding areas, to be able to participate in the process of presenting allegations/protests, to try to get your property into the situation in the new General Plan you would like to achieve.
Please do not hesitate to CONTACT US, in case you may want our advice regarding your existing property, certain areas around it or plots you may want to build on. We are more than happy to help you check their town planning situation and how the New General Plan will incorporate them.
