Junta de Andalucía coalition is still negotiating pact on illegal homes

Illegal homes in Chiclana (Cádiz)
(elperiodistadigital.com)

SEVILLA – Sources in the Government of Andalucía say that, if two vital items in the region’s 2015 budget are settled (See this week’s article Health and Education to be saved from Budget cuts)and ‘minor issues’ are sorted, both parties (PSOE AND IU) agree that new legislation is needed to ‘legalise’ between 20,000 and 25,000 homes or houses that were built ‘illegally’ during the construction boom, and bought in good faith, most often by foreigners, at least in Andalucía. This subject is supposedly ‘close to the heart’ of Junta President Susana Díaz, which is not necessarily a guarantee of its coming to fruition (they've been at it for a while now...). More on ‘Regularisation of Illegal Property’ by Rafael Berdaguer Abogados (written and published last year -- they're still negotiating!)
The Council of the Junta de Andalucía has passed a Decree to regularise and clarify the legal status of buildings in rural areas (Suelo No urbanizable) and legalise them where possible in accordance with the Law on Land Use in Andalucía.

The Decree foresees three type of cases: isolated properties, settlements of properties which demand public services and Rural settlements which also demands certain services.

The isolated properties are divided into different categories for the recognition of their status:

A) Properties which are in compliance with existing planning.

Legal properties built with a licence need doing nothing. There are also properties which can be legalised which are those which were built without a licence or with one but having contravened its provisions which are in compliance with the existing territorial or local planning. These could be legalised providing a building licence is applied for even though the statute of limitation for the authorities to reinstate the legal order has expired. Once the licence is obtained the owner could apply for the Occupation Licence. This licence, which in the past would only serve to contract the services and supplies, has become the closing document to certify that the property is fully legal. The Occupation Licence means that the property has been built in accordance with the project for which the building licence was granted. If these properties did not count with a Deed for the Building, this can be taken out and registered in the Land Registry.

B) Properties which do not comply with the existing planning.

These are various cases:

       B.1. Properties built with a licence in compliance with the planning at the time it was granted but not now. They are considered as Out of Planning. This means that the owner can only carry out maintenance works to keep same safe and in healthy and inhabitable condition but cannot carry out any improvements works.

A first occupation licence could be obtained providing the existing use is compatible with the planning. A deed for the building can also be taken out.

       B.2. Properties which have been completed and for which the statute of limitation to reinstate the legal order has expired.They can be recognised as Assimilated to Out of Planning.

At present a property built illegally in rural land not specially protected cannot be demolished or sanctioned if the authorities have not carried out any measures to protect and reinstate the legal order within four years from its completion.

In the resolution recognising them as Assimilated to Out of Planning, the possibility that the services and supplies can be connected to these properties can be granted if those were accessible and they do not lead to the erection of more buildings in the area.

These properties cannot obtain the Occupation Licence and a Deed for the building with the said status can be registered in the Land Registry.

           B.3. Properties that has been built in specially protected areas, public areas or which are in areas prone to natural risks.

These properties cannot be recognised as Assimilated to Out of Planning, except if they had been built prior to the declaration of special protection to the area involved and the statute of limitation to reinstate the legal order had expired before declaring the area of special protection.

For these properties the Authorities should adopt the necessary measures to protect and reinstate the legal order.

          B.4. Properties for which the statute of limitation to reinstate and protect the legal order has not expired.

The Authorities must adopt the necessary measures to protect and reinstate the legal order.

How can one obtain the recognition of Assimilated Out of Planning Statute?

The Local Council can initiate the procedure or the owner. In this latter case, the owner must submit an application with a plan and the registration number of the property and proof of the date the property was completed by way of Certificate issued by Council, Architect or the Rates Office (Catastro), proof that the property is qualified for the use to be given as inhabitable place and description of the necessary works to furnish the property with the basic services in an autonomous and sustainable way or if possible by connection to nearby infrastructure networks.

The local council will verify that all requirements are met specially that the property has been completed and it is not subject to proceedings aimed to reinstate the legal order. The Council may demand the owner the carrying out of the necessary works to connect the property to the basic services. To this effect will give the owner the term in which he must present a project for such works. The owners will have to subscribe in a public document an undertaking to execute the said works, which will enable them to obtain the recognition of their property as Assimilated to Out of Planning. This resolution will identify the property, will recognise the property for the use it was built. It will recognise that the statute of limitation to reinstate the legal order has elapsed, will specify the works that can be authorised in the property and the basic services the property can count and the conditions of the supplies. The lapse of six months without an answer from the Council will mean that the status of Assimilated Out of Planning has been denied. If there is an express resolution denying such status it has to express the reasons and will warn the owner that the property cannot be used. The Local Council will in this case adopt whatever measures are necessary to reinstate and protect the legal order.

With regard to the Urban settlements and Rural Settlements the Decree refers to the Town Plan which should identify them and set out the conditions and procedure for their legalisation, providing the owners face the costs of the basic infrastructure and urbanisation.

Which are the advantages of the Decree?

In our opinion it will serve to identify, clarify the status and give a way out to properties which were built illegally in the country side with the possibility that these property can count with the basic services. This will certainly help the transaction of this type of properties although they will continue suffering the restriction from banks to give mortgages to the purchaser of these properties.