Is your house really Legal?
You may think so because your solicitor, agent and even the developer have confirmed it to you– it’s not a problem, just wait a while and all will be all right.  They would know wouldn’t they? And it’s been like that for years here in Spain

But would it surprise you to know that Madrid has earmarked more than 30,000 properties for demolition in the Valencia region alone? How can you be sure that yours isn’t one of them? This is nothing.

Last year in Ontinyent, Oliva and other towns locally the town halls stopped all building work. This wasn’t just on a whim – it was because of the removal of discretionary powers previously given to the town halls coupled with the determination of the Central Government to bring Spain into the 21st century and stop all illegal and unlicensed building work.

In one case in Malaga province 300 people have been frog marched out of their houses – removed from an urbanization by the police – they couldn’t even go back and get their personal belongings. The police cordoned off the area and the owners had to wait helplessly as they pleaded with the town halls to let them have their houses. Some have had their houses demolished even though they had licenses issued by the town hall – however these turned out to be illegal because they weren’t passed in accordance with the general plan of the town hall. A basic check their solicitor should have done – but why would he care because he is really acting for the agent and developer not for you.

So just what leg do you have to stand on if you believe what you have been told by your agent, solicitor or developer that it will be “all right in a while”. Probably, none at all.

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Is your house really Legal?

Having written on many forums relating to property advising potential buyers about the benefits and pitfalls of buying in Spain there are a number of subjects that continually crop up. These being

  1. Clients are told that they can build on plots of land less than 10,000m²
  2. Clients are told they only have to wait for four years when a building is built and get an architect to sign off under “Antiquity Law”
  3. That it is ok to take over a house without a License of First occupation
What makes it worse is that it is the professionals that people naively lay their trust in, whot are telling them this – the very people who should know different. So lets get to the bottom of what is and isn’t real

1. You can build on plots less than 10,000m²
On rustic land it was accepted practice that you could build on a plot of less than 10,000m² even though the law stated otherwise. Until November 2004 this was the case as the town halls did have a special discretionary power and could use their discretion to grant such buildings. The key word though is discretionary. This was primarily meant for borderline cases (8000m² for example) However, as in most laws in Spain, this interpretation was taken to its extreme and I have seen examples of houses built on rustic land of around 2000m² or less. This can and will cause problems later on.

However, in 2004 the discretionary powers were removed from the town hall – although not retrospective (anything built and signed off as being legal before this time will be left alone) it means that anything built after this time can and most probably will be demolished. Make no bones about it, the current government in Madrid has earmarked more than 30,000 illegal builds for demolition in the Valencia region alone and they have already started the process in the Costa Del Sol.

2. Wait 4 years and you can legalise it.
This again used to be the common practice which still goes on. However more and more town halls are being taken to task by Central government for exactly this sort of thing – and just what happens if in the next year or so the political climate changes and the incoming mayor decides that all the illegal builds are going to come down – where will that leave you. Remember there are local elections in April/May next year.

And it isn’t just at the beach this is happening. Remember last year in Ontinyent when the town hall decided NO-ONE could build anything (although some decided to flout this and build anyway). As far as I am aware this situation still has not been resolved and those that flouted the law leave themselves liable to demolition – or at the very least heavy fines. As I mentioned before – what happens when the mayor changes at the local elections and the incoming mayor decides to eradicate all such practices – where will that leave you.

3. You can purchase a property without a licence of first occupation.
This is a very important piece of paper – it is permission from the town hall that states the building is of satisfactory quality, meets minimum specifications for occupation and allows the utilities companies to provide utilities. Without it you are likely to be left on constructors electricity and water – which at the best of times is irregular and worse still can leave you in dire situations if for example the builder doesn’t pay the electricity. And it does happen. A friend of mine had to provide an emergency generator to a site in Ontinyent recently because the builder neglected to pay the bill. There were only four houses on the site, but without electricity what can you do. And I am sure those people who bought there bought in good faith having been advised by those very professionals who are there to guide them.

So if YOU are supplied by constructor’s electricity then you don’t have a licence of first occupation. Worst still – the town hall could decide one day to tell you to get out – and there isn’t a thing you can do about it. You are not legally entitled to live there until you have that licence.

Why would you want to take the risk?

So what can you do to avoid it happening to you?
  1. Make sure you get independent legal advice.
 Unfortunately here in Spain there is something known as the triangle – Developer, Estate Agent and Lawyer. All work in cahoots with each other and the only people they are interested in serving is themselves. So whilst you may well think your solicitor will act on your behalf the chances are if they are an agent or developer recommended solicitor - they aren't.

Best then to look well out of town – if you are in the provinces then look to Valencia or Alicante for a lawyer – someone who you can guarantee has absolutely no ties with either agent or developer and someone who will ONLY act on your behalf. If you don’t know of any then drop me an email and I will put you in contact with a very good one in Valencia who will act very much on your behalf – and every one I have recommended to him have had their problems resolved in a timely manner.

  1. Ensure before you see the permission to build.
Obviously before you put any money down you or your solicitor need to make sure that you get sight of the permission to build. This is another thorny issue because the practice was that the developer would build and get permission afterwards. Not the best way of going about it because you then have a situation where the town hall may say no. Worse still the town hall may give approval but the Valencia Generalitat may say no – and the latter generally have the  final say.

  1. Bank Guarantees
Once you have paid any monies over you MUST get a copy of your bank guarantees. This is a legal requirement meant to protect you. Your solicitor must ask for and receive them within a month. If you do not get these you may well be kissing goodbye to your money if anything happens. These apply to every payment you make. If there are stage payments you MUST get a copy of the bank guarantee relating to that particular payment when it is made – otherwise it is not covered.

  1. You should also check the contract
Make sure that there are penalty clauses if the developer is late. Keep all sales material relating to sizes and look and materials to be used. These form the basis of the contract and if the developer fails to deliver you can seek compensation. So keep everything you are given and ask for more. Do not part with your money until you get these – no matter what sales story you are told.

  1. Ensure you have Licence of first occupation.
Once completed make sure you do not complete until you have an LFO. Whatever your solicitor, agent or developer says – it is against the law to force you to complete without one. They cannot do it. If it takes a year to get then so be it – that is their problem. One more thing, DO NOT accept the LFO by administrative Silence. This is a process whereby the LFO was deemed to have been granted if the town hall did not respond within a certain time frame. It was meant to try and release the town hall from getting bogged down in paperwork. However, it only applies if the development was legal in the first pace. And it does not apply now.

  1. Hold back a final 10% of the payment for snagging
New houses have problems. And builders tend to forget the problems as soon as the money is paid up. So hold back 10% for snagging. As soon as you take possession of the house check it out thoroughly. Get a professional in if need be – I am sure Mark Paddon who also writes for the Inland Trader would be happy to help out. Make a snagging list – major and minor. Present this to the builder with a timeframe to fix them. If not fixed in this time frame then use the money held back to fix them. Make sure though you stipulate that the money will be used for this purpose if the snags aren't fixed in the time frame and if your solicitor tells you this is not possible – it very much is. The law is on your side – just make sure you get a solicitor who will ensure YOUR rights are protected.

If anyone has found themselves in this situation – it may not be too late. The chances are your legal advisor and agent have aided this situation therefore you need to get INDEPENDENT legal advice now. Waiting for something to happen may mean you potentially lose your home. Remember in the Costa del Sol they have already started demolishing illegal builds – you could be next so why take the chance.

If you are in this situation and need advice please do not hesitate to contact me – send emails to the Inland Trader or contact the Inland Trader direct. They will pass your details on and we can help you from there.

Don’t be a victim – do something now!

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