URBAN LAW | C&D Solicitors

OBTAINING THE LICENCE OF FIRST OCCUPATION

Written by Francisco Delgado Montilla on 19 January, 2012. Posted in assimilated out of ordination, conveyancing, developer, Featured, Headline, legal advice, out of ordination, property law, Property law, Property law, undeveloped land, URBAN LAW, urban plan. No Comments on OBTAINING THE LICENCE OF FIRST OCCUPATION

We have recently known, through our clients’ consultations, of the situation that most of the owners of La Axarquía area suffer, which comes from the lack of a License of First Occupation on their properties, particularly, regarding those problems with contract the supplies, such as the electricity supply for their first time or for its restoration, after being cut off by the electricity company (i.e. end of construction site temporary power).

The License of First Occupation is a certificate issued by the town hall that confirms that a newly-built property fully complies with all planning and building regulations, and is ready to be used as a dwelling. It also confirms the compliance with all Health, Safety, Planning and Construction laws, and that the property has been fully completed, with no outstanding works. Each newly built dwelling will have an individual License of First Occupation. License of First Occupation only applies to newly-built properties as the L.F.O. is the original authorization to use them as a dwelling.

Granting a License of First Occupation certifies that the developer has built the dwelling fully complying with the original Town Hall’s Building License, as well as complying with all Planning laws.

The first occupation licence wasn’t required before 1978, this means all the properties with more than 37 years won’t have it.

The License of First Occupation is required to have access to the official supplies (water, electricity, gas,…).

The Spanish law requires the granting of the License of First Occupation to set up any utility contract for the property. Nevertheless, the most of the properties without the first occupation licence have electricity supply and water supply. Many of these properties haven’t a first occupation licence due to the works in the urbanization aren’t finished yet but the owners are living there. We can say that in many cases the real situation of these properties haven’t anything to do with the content of the law.

It is always advisable to complete the purchase with a valid License of First Occupation (LFO) in place, even if it is not illegal to complete at the Notary office without a License of First Occupation. In other words, the property purchase completion before a Spanish Notary public without a LFO is legal in Spain, and the property can be lodged under your name at the Land Registry records. However, it is not legal to “live” in a property without the License of First Occupation. This is the reason because not having it in the new homes will prevent you from having access to water and electricity supplies for the property in order to get them connected.

Properties without LFO can be bought, sold and registered at the Land Registry. So it is not illegal to sell a property without LFO. If you own a newly-built property that was not issued with the License of First Occupation you might have trouble selling it as the potential buyers may seek for a steep discount because of this matter.

The information concerning the LFO given in this post may have to be understood as a benchmark to all those new built properties according to a building license previously obtained and complying with all Planning laws. If this building license was not given, if it was not according with Planning laws, or, in the event that the works carried out did not adhere to the building plan, we will be in another different situation, and the way to get access to these supplies would be different as well. But this is an issue which will be analyzed in a further post, taking into consideration the new measures introduced by the called new “Decree of legalization”, approved by the Andalusian Parliament last 10^th of January, in this sense, which is not in force yet.

Author: Francisco Delgado Montilla, C&D Solicitors (lawyers)
Torrox-Costa (Malaga/Costa del Sol/Andalucia)

ADVICES FOR OWNERS OF NON-REGISTERED HOMES IN THE LAND REGISTRY

Written by Francisco Delgado Montilla on 14 December, 2011. Posted in asesoramiento legal, assimilated out of ordination, developer, Featured, Headline, legal advice, New building declaration, out of ordination, property law, Property law, URBAN LAW. No Comments on ADVICES FOR OWNERS OF NON-REGISTERED HOMES IN THE LAND REGISTRY

New building declaration and Land Registry records

The possibility of registration in the Land Registry of constructions without building permits after four years of completion, is provided by a State regulation – Spanish Royal Decree Real Decreto 1093/1997 of 7th of July, Section 52 provides this possibility, as well as the following requirements for this registration: 1) proceedings of town planning discipline shall not appear in the Land Registry against the construction; 2) the time fixed by law shall have been elapsed in order to “tackle” this infraction through the administrative procedure and 3) certification of the year of completion of the construction.

Thanks to the above mentioned Section of the Royal Decree, thousands of constructions have been registered in the Land Registry, although they did not have the building permits or the constructions did not comply with the conditions of the building permits.

This Section has not been modified and is still in force, however some elements has been incorporated to increase the requirements demanded by the Land Registry offices and to “toughen” the requirements for the admission of this registration, as for example:

1) Amendment of Section 20.4 of the Spanish Land Law which refers to the declarations of new buildings and incorporates a new requirement for its registration in the Land Registry—the submission of a certificate from the city council stating the fuera de ordenación (out of ordination) condition for this construction.

2) As a result of the approval of the new regulation Reglamento de Disciplina Urbanística (town planning discipline regulation) by the Junta de Andalucía Regional Government in May 2010, pressure and control have been increased above these constructions located in non-developable (non-urbanizable) lands. The Junta de Andalucía have notified the Directorate General for Registries and Public Notaries, so that they demand new obligations for the registration of declarations of new buildings, as for example, the submission of a certificate from the city council, so that the Registry record the “fuera de ordenación” condition (out of ordination) or the “asimilado a fuera de ordination” condition (assimilated to out of ordination).

3) Some Land Registry offices have begun to demand the submission of this certificate from the city council as an essential requirement for the registration of the declarations of new buildings.

What do all these changes mean for owners who want to register their home?

In the event that in the future the Land Registry requires owners the submission of this certificate from the city council to register their home, swimming-pool, garage or any other construction in their property, these below may be the consequences:

1) Increase of the economic costs for the declaration of the new building, because some city councils are approving ordinances for the payment of fees for obtaining it, as they need financial resources; in some cases, these costs may range between EUR 2,000-5,000, depending on the square meters of the property.

2) As any other application to city councils, this procedure would be slow and may imply several months until obtaining the certificate; in case owners need to obtain the declaration of new building urgently because of a sale, this period of time may become an important handicap.

3) The fact of recording in the Land Registry the “fuera de ordenación” (out of ordination) condition or “asimilado a fuera de ordenación” (assimilated to out of ordination) condition on their property, implies the documentary evidence of some limitations, which may affect the sale price when transferring the property to a prospective buyer. It is also worth mentioning that the prospective buyer may demand a discount in a possible transaction regarding this fact.

To sum up, in the event that the Registry offices toughen in the future the requirements to register any construction in the Land Registry and the resulting increase of the costs and period of time for the procedure completion, we advise you to take advantage of the current situation and execute the Public Deed of Declaration of New Building of your home as soon as possible and submit it to the Land Registry to avoid any problem in the future.

Author: Francisco Delgado Montilla, C&D Solicitors (lawyers)
Torrox-Costa (Malaga/Costa del Sol/Andalucia)

DRAFT OF THE DECREE ON THE LEGALIZATION OF HOUSING ON NON-DEVELOPABLE LAND OF ANDALUSIAN REGIONAL GOVERNMENT

Written by Gustavo Calero Monereo on 13 August, 2011. Posted in developer, Headline, judgment, NON RESIDENT, property law, Property law, undeveloped land, URBAN LAW, urban plan. No Comments on DRAFT OF THE DECREE ON THE LEGALIZATION OF HOUSING ON NON-DEVELOPABLE LAND OF ANDALUSIAN REGIONAL GOVERNMENT

Three weeks ago, we received in our offices a copy of the draft implementing Decree of 20^th of June 2011, which regulates building and scattered rural settlements on non-developable (non-urbanizable) land in Andalusia.

This draft is supposed to be created as an attempt to regulate the situation of a large number of properties located on non-developable (non-urbanizable) land in Andalusia, where criminal or administrative proceedings cannot be filed against them for land development liability, because the offense or infringement is extinguished by prescription. The Andalusian Regional Government is partially responsible for this situation, as they have not protected or controlled the legality regarding land developments of municipalities for many years. Meanwhile, they have collected the profits from the transfers of title ownership by means of the transfer tax.

Regarding the draft of the Decree, the concept of constructions assimilated out of ordination is not understood. The use and enjoyment of these constructions can be exercised, but a complex administrative procedure is established, so that the city councils certify the security and necessary facilities for the use and enjoyment of these properties. However, the resolution to this procedure shall never mean the grant of the First Occupancy License, neither the owner’s rights shall be recognized to be exercised before any administrative or criminal proceedings (article 7, section 6 of the Decree).

If the use of housing is recognized and regulated to preserve the rural area, the environment and the scenic value where the construction is located, then, why the First Occupancy License is not granted when the owner is enjoying the property? What does “non-recognition” mean before any court proceedings? As a result, it could be understood that in the event of court proceedings, this recognition of assimilated housing shall not have any legal “value” for these proceedings, that is to say, legalization or regulation does not exist.

Maybe, the problem is based in the creation of the concept “assimilated to out of ordination”, which was incorporated by the Decree on Urban Discipline of Andalusian of 2010 and its implementation.

Furthermore, an additional problem arises, as the Land Registry jurisdiction belongs to the Spanish Government. As a result, the State legislation should firstly include this legal concept of “assimilated out of ordination” within its rules in order to authorize the registration in the Land Registry of any administrative action which establishes a construction under the consideration of this concept. Nowadays, the only existing concept is “out of ordination”, but nothing is referred to constructions “assimilated” to these ones. Then, the Regional Government is not authorized to establish the access or registration in the Land Registry, as this jurisdiction belongs to the Spanish Government.

Lastly, in many Andalusian municipalities as the Axarquía region, thousands of isolated houses have been built on non-developable land under the corresponding construction permits. Then, it does not seem coherent that differences in treatment are not considered for these owners acting in good faith, regarding these municipal permits they were granted. This draft of the Decree does not include any reference to them; therefore, the legal situation of the constructions with permits equates with these other constructions without permits.

In conclusion, regarding the content of the draft, legalization or regulation of properties located on rural land is not incorporated; no legal novelty is provided to solve out the problem resulting from the lack of control of Public Administrations regarding the use of land; this law only complicates even further the current situation of this issue.

Author: Gustavo Calero Monereo, C&D Solicitors (lawyers)
Torrox-Costa (Malaga/Costa del Sol/Andalucia)

NEW URBAN SCENE IN LA AXARQUIA

Written by Gustavo Calero Monereo on 30 June, 2011. Posted in conveyancing, developer, Headline, NON RESIDENT, Property law, property law, undeveloped land, URBAN LAW, urban plan. No Comments on NEW URBAN SCENE IN LA AXARQUIA

Complex urban planning in Andalucia: PGOU, LOUA & POT

Due to the urban complexity that most of the municipalities of La Axarquía are immersed because of the Spanish local elections held in May, the changes in the local governments could mean changes in the way of managing each municipality and in the solutions that such local governments could propose in view of the complex urban development in this area.

We have to take into account that, nowadays, most of the municipalities are working in the production and approval of their new General Plans for Urban Zoning (PGOU) to adapt them to the Urban Zoning Code of La Axarquía (LOUA) and to the Plan for Town Planning in La Axarquía (POT), and so as to offer a final solution to all those housing developments built upon non-urban areas as well as to the thousands of isolated buildings within each municipality.

Apart from the several actions carried out by the town halls, it is worth mentioning the announcement made by the Junta de Andalucía about the approval of a Decree to legalize the large number of houses in La Axarquía. Besides, the Junta de Andalucía has made an inventory about houses built upon non-urban areas and which is being sent to each of the town halls so that they could know the situation of all those mentioned houses.

The PGOU is the main instrument in the planning of each municipality and it provides the characteristics and nature of the area that comprises such municipal district. So, it is very important that those owners with properties built upon non-urban areas, whether it is an isolated house or a house within a development, appear before the municipal offices as soon as possible, preferably with a specialized lawyer, in order to study the situation of the houses and the possibilities of legalizing them or declaring them houses out of regulation.

It is worth mentioning all those housing developments partly or totally built upon non-urban areas, but with different situations in their basic infrastructures (lighting, roads, sewer systems, water, etc). In those cases, it is necessary that each Community of Owners or, if it is not established, one of their representatives, enquires in the town hall about the situation of the housing development and its possible inclusion in the new PGOU.

If we take into account that it seems that possible mid-term solutions and measures may arrive, it is important that owners ask and take part in such “regularization” process that will be born within each town hall, so as their property or housing development could be part of this new plan, or in order to find a solution for each conflict or situation.

Obviously, regularizing each house will have a charge for the owners, depending on their situation, but we think it is a “minor wrong” if this situation of legal insecurity upon many rustic properties comes to an end.

Nowadays, our legal firm, which represents some clients that have houses or are part of a housing development built upon non-urban areas, has already started to deal with several town halls about the situation and regularization proposals of their properties. It is important that the owners are the ones who look for solutions with the town halls.

Author: Gustavo Calero Monereo, C&D Solicitors (lawyers)

FIGURE OUT OF REGULATION AND CONSTRUCTION ON UNDEVELOPED LAND

Written by Gustavo Calero Monereo on 7 February, 2011. Posted in developer, fuera de ordenacion, Headline, malaga, Property law, undeveloped land, URBAN LAW, urban plan. No Comments on FIGURE OUT OF REGULATION AND CONSTRUCTION ON UNDEVELOPED LAND

Andalucian houses built out of regulation according to Town Hall´s urban law LOUA

Now that many municipalities in Málaga are approving their development plans in an attempt to regulate the urban chaos in relation to dwellings on undeveloped land, and to adapt those plans to the Law on Urban Planning of Andalusia (LOUA,) the obvious question is; what will happen to the irregular housing that cannot be legalized by the new urban plan adopted by each municipality?

A possible solution to these houses can be the designating them as homes “fuera de ordenación” (out of regulation), ie homes or buildings that do not satisfy the new municipality’s urban planning, therefore cannot be legalized, and it cannot be either asked any kind of responsibility to their owners or developers as any possible urban infraction has prescribed according to the LOUA or penal code, through the passage of over four years and five years respectively, since the buildings were finished.

Such classification of a property as “out of regulation” can be done by either the City Council or at the request of the owners, and entails certain limitations on the rights of the owners with respect to such property. Thus, the building can only undertake repairs work and maintenance for the strict conservation for the occupancy and use of such constructions, and such other works authorized under exceptional provisions of the Act. However, these properties can still be used by their owners, so that they can continue to enjoy their homes, do conservation work thereof and carry out any legal business on their property, acknowledging the existence of the above mentioned limitations in the property use and enjoyment but with the legal security that any legal liability can be required in the future because the housing has been declared by the City Council as out of regulation and, therefore, is now legally defined.

Given the numerous buildings that are not legalized in the Axarquia and over which there can not be imposed any liability, some municipalities are currently starting to open statement records of “out of regulation” in order to end up with this situation of legal uncertainty over these buildings that can not be legalized since they are located on undeveloped land according to the urban plan. The objective is also to give the owners legal protection letting them know what they can or cannot do on their properties but with the legal security that no responsibility will be claimed on them in the future regarding their properties. In fact our firm recently launched the first record of this type in one of the municipalities with more properties in this situation in La Axarquia, not having finished to this day.

According to the LOUA, the councils have the authority or power to define in their urban plans what can or can not be done on these out of regulation properties, so they can take this advantage of that power or authority to help solving the problem of all buildings that can not be legalized in the new general urban plan but over which there cannot be any imposed legal liability. Thus using their authority to help making this cataloging received positively among the affected property owners while helping to organize and regulate part of the chaos of the homes built on rural land, with the consequent benefit to the town Hall for new incomes and for the owners that will have legal security in their properties

Therefore, given the impossibility of legalizing the new urban plan on everything that has been built illegally, the legal definition of out of regulation may be of interest for the owner to give legal security to their property.

Author: Gustavo Calero Monereo, C&D Solicitors (lawyers)