House legalisation in Spain – Basic concepts

Definition of an ‘illegal’ house or property in Spain

An ‘illegal’ or ‘out of order’ house is a building that has not been built with the corresponding urban license and has not obtained the necessary license of first occupation. In other words, the government has not granted its construction.

The problem is not minor, as a house must comply with a multitude of different regulations (legal, urban planning, habitability, structure, construction, installations, etc.) in order to be legal. The usual problem is not complying with the urban regulations.

There are many possible causes for these situations. Some of them are the following:

• Construction of a house on urban land without applying for a licence.
• Extension of a house without applying for a licence (extension of surface area, modification of volume, structure, etc.).
• Building a house on rural or undeveloped land.
• Building a house with a licence applied for it but finally refused by the Town Hall.
• Horizontal or vertical division of a dwelling into two or more dwellings without applying for the corresponding licence for their segregation.
• Using a property for commercial, office, industrial, agricultural, etc. use as a dwelling.

Once having defined the different situations that can give rise to an illegal house, we will try to answer the most frequently asked questions by our clients over the years:

I have been paying the taxes for years, that mean the house is legal right?

Any property, regardless of its legal situation, must pay the Property Tax (Impuesto de Bienes Inmuebles).

The fact that the IBI bill is paid only means that the tax office, during a periodic review of the cadastre, has detected that the property has been built, has updated the information on the plot and, consequently, has increased the amount of the IBI tax.

Probably, at the time of the update, the last four years of that tax have been charged. However, this does not mean that the administration recognises its legality or that they cannot start a sanctioning process.

It is very simple, the tax office does their work charging you but they do not communicate this to the urban office. This means that paying taxes means almost nothing regarding the legality of the property.

I have had the house registered before a notary, with its current configuration, is it not legal either?

Unfortunately not. Having it registered at the notary’s office is important to make it clear that you own the building, but it does not mean that the property is legal in the eyes of the administration.

There is the possibility that the deed states that the property is ‘out of order’, which places it in a legal limbo and illegal to all intents and purposes. If it is not in “out of order” it may not comply with the urban regulations or not having a urban license, making it ilegal anyway.

How to modify the property deeds of a house that has already been built?

These cases are know as new old house, inmatriculation or register at the property registry.

For this type of procedure, a certificate of age of the property or a certificate of old new construction is required, but this document only serves to define the property and its state, not to legalise it from an urbanistic point of view.

Despite this, having the property registered with a notary is important, because it prevents other people from claiming ownership and establishes that you are the owner, and no one else.

In addition, a date of construction is usually determined in the new deeds, which always helps to establish the administrative prescription of the planning permission and helps to stop posible urban fines.

Contact us if you have doubts or you are in this situation.

The house was built legally, but after many years we reformed it and extended it, is this legal?

In this situation the house would not be legal either.

This illegal extension without any kind of permission affects the status of the whole house. In this case, the administration can issue a sanctioning file and force you to restore the situation before the renovation.

You have to be careful because depending on the region and municipality, you can be forced to pay up to the 80% of the value of the construction made ilegally and even demolish it.

Legalise the extensión of a house

The legalisation of a house extension is relatively straightforward. In most cases, a licence was simply not applied for or some urban planning parameter was not complied with.

Consequently, a legalisation project can be carried out, justifying the disproportionate nature of the demolition and the lack of relevance of the irregularity for the built or natural environment in which the house is located. Sadly, not every building can be legalised, it depends very much on the specific case

All legalisation cases are interesting, due to their complex legal and documentary aspects in order to obtain approval. Contact us if you are in this case.

How do I know if my house is legal?

The only document that guarantees that a house is legal is the license of occupation or “cedula de habitabilidad”.

The cédula de habitabilidad is the old but better known name for the current licencia de primera ocupación or the new declaración responsable de primera ocupación.

In case you do not know if your property has the license of occupation granted or not, the Town Hall can tell you and you can ask for a copy if it is still valid.

Checking the title deeds of the property is also a good option, as the notary may have attached this licence or made a note of it.

If the cédula has already expired (something that can happen in autonomous communities such as Murcia, Comunidad Valenciana or Cataluña) the procedure to obtain the license of second and successive occupancy for a purchase-sale is quite simple.

But beware! The license of occupation will only be valid if the house has not been modified. The license is granted over a construction project and if the house changes, the property will be illegal anyway.

How to legalise a building work that has already been carried out?

Work that has already been carried out on a property that required a license can be legalised at any time, as long as it complies with the town planning regulations. In Spain we call that legalization projects and legalization licenses, and they can be done even if you have received a fine for the property.

As long as the property complies with the regulation, a legalisation project can be carried out. A legalisation project is intended to specify the compliance of a certain construction with urban planning regulations, in order to obtain its urban license by the municipality.

Legalising an out-of-plan dwelling

Dwellings that are out of planning permission can be legalised with certain instruments that some Autonomous Communities have created. This out of planning means that they do not meet the urban regulations

Andalusia established the procedure of assimilation to out-of-plan (AFO) and recently the Valencian Community has also established the procedure of minimisation of environmental impact.

In any case, in most cases these processes seek to obtain the license of occupation through regularisation, not explicit legalisation.

The legalisation of a property is a complicated issue and depends on several factors, we advise you to ask a specialist technician to inform you correctly.

Legalising a property due to its age

Although it is possible, as in many municipalities there are protocols for the granting of license of occupations to dwellings that are 30, 40 or more years old, it is complicated to obtain full legalisation of a dwelling due to its age.

In any case, it is always worth trying and in communities such as the Region of Murcia it is possible to obtain a license of occupation for old properties.

In addition, we always have the possibility of complying with the planning and legalising it by means of a legalisation license. These are the best case scenarios but obviously not every property can comply with the regulations.

What are the benefits of legalising a property?

Legalising your property means, first of all, complying with the current regulations. If you are able to do so, you will avoid problems or fines in the future and you will ensure that the property is completely legal for sale and purchase or any type of rental. Above all it means sleeping relaxed by night.

But you will also see that its value increases considerably, affecting the amount of the sale or purchase or the amount that the bank would lend you in the event of applying for a mortgage.

In addition, in the process of selling or registering the property, the notary must register the property as a ‘building out of order’. This situation may scare off more than one buyer, and the bank will never grant a mortgage for the real value of the property, as it is not considered as such. Consequently, the sale and purchase becomes much more complicated, it may be for a lower price than if it were legalised, and most buyers would not be able to afford the outlay.

In addition to this, if you do not have the property legalised, you may face a sanctioning procedure by the local council, which can lead to legal proceedings, a fine and even imprisonment.

Apart from these more general cases, there is a common situation that can occur with illegal or out-of-order houses. Cities tend to expand and with these urbanisation processes there are always buildings that do not adapt to the new planning and need to be expropriated. In case your property is not legalised as such, you will be given the minimum value as a building with warehouse or similar use. It goes without saying that its value will drop to more than a third of the value it would have as a dwelling.

I have found out that my house is illegal, what process can I follow to legalise it?

In the event that you have discovered that your house is not legal and does not have a license of occupation for its current state, the alternative you have is to begin the process of legalising the house.

To do this, the first step would be to check if the house is legalizable. There are homes that cannot be legalised in certain situations according to the applicable planning.

Once this has been done, a legalisation dossier should be carried out and, if it is necessary to adapt to the legal situation, a reform project for the property, so that, after obtaining permission, the license of occupation can be applied for.

Only after obtaining the license of occupation from the local council would the property be legal and we would have to go to the notary to register the property in the Land Registry and regularise the situation completely.

The other possibility is registering the current state of the property in the deeds, but this is not always a possibility neither. You will have to consider all the possibilities and having the property fully checked.

Conclusion

The legalisation of dwellings is an important process, as illegal dwellings can cause a lot of headaches. It is key to be clear about the legal status of any property, as this tends to appear at the worst times, purchases, inheritances and rentals, with little time to make modifications.

At Leukos Architecture we have a refined and proven service for the legalisation of real estate properties, guaranteeing a very high degree of success in each of the projects we accept. Write to us without commitment and let’s talk about your case.