3 property legality traps and how to avoid them
These are three common ways buyers are tricked into thinking a property is legal when it is not
by John Michael Kirby, Technical Architect and Building Engineer
The problem for buyers in Spain, especially foreign buyers, is that there is no prohibition to selling an illegal property. They get marketed just as legal properties do and if no one tells the unsuspecting buyer what the real situation is they get sold as legal properties do and that has had, and continues to have, life shattering consequences for those that fall into the trap. Those consequences include the demolition of the properties, fines for being in possession of an illegal property, not building it just being the owner at the time of prosecution, being responsible for the mortgage on an illegal property even though the property has been demolished and criminal prosecution.
The scale of the problem is huge as there are some 300,000 illegal rural homes just in the Community of Valencia. Lawyers know they are illegal, and so do the notaries and the local authorities.
For a property to be legal, it has to meet three criteria: it has to be compliant with the corresponding building code, it has to be compliant with town planning and it has to have the valid building licences that correspond to that type of property and that property in particular.
Note two very important absences in that list: a property is not made in any way shape or form more or less legal by being in possession of a habitation licence and it isn’t made any more or less legal by having a clean sheet, so to speak, or no ‘encumbrances’, to use the technical term from the land registry. Not one bit closer to legality with or without them, which is surprising as they are normally the two documents presented to potential buyers as proof of legality.
The first is a licence for an activity, the activity of living in the property not the property itself. All of the 298 illegal properties in Llíber, Alicante possess a habitation licence and as the unfortunate owners of those properties have found out to their cost, none of those properties are legal.
Registration in the land registry is voluntary, whereas registration in the cadastral registry, the tax office is compulsory. After 2019, certain deficiencies have to be noted on properties where the offence has not been prescribed but, as 99% of the offences have prescribed, as the statute of limitations on those offences was just 4 years. A certificate from the land registry will merely tell who the owner is, should they have chosen to register the previous sale. The boundaries described in the land registry are also not a certificate of fact they are merely informative.
So, showing a potential buyer a clean sheet from the land registry, which proves only two things: the owner according to the previous recorded sale and the fact that any civil or administrative offence committed in the construction of said property has been prescribed, which is the first method of duping an unsuspecting buyer.
It’s essential to grasp the fact that immunity from prosecution does not entail legality. If, after 25 years a murderer escapes prosecution this does not make them innocent of murder, only beyond the reach of the law and the damage inflicted on the victim(s) still remains. An illegal property has only two destinations as defined by law; voluntary demolition, and natural wrack and ruin. So you can forget asking for permits to repair or improve the property as the answer will be at best “no”, “non” or “nein”.
As mentioned, showing a habitation certificate for the property is equally irrelevant for this purpose. In law we use the term ‘impertinent’, meaning it bears no relevance to the matter. So what does a habitation certificate prove?
A Habitation Certificate (now Licencia de Ocupación, used to be Certificado de Habitabilidad) is an official document that certifies that a property meets the minimum living standards required by law. It confirms that the property is suitable for residential use and complies with health, safety and building regulations relating to the activity of living in the property, not the legality of the property itself, nothing more.
They are required for connecting utilities (electricity, water, gas) and for selling or renting a property. They do not confirm that the property complies with urban planning regulations or that it has all the necessary building permits.
There are two types and they both expire:
- First Occupancy Certificate: For newly constructed properties
- Second Occupancy Certificate: For existing properties that are being sold or rented
The certificate is typically valid for 10 years for existing properties and 15 years for new constructions but they also expire on the transfer of the property and if any major works are carried out on the property.
The third way buyers are duped (all of those in Llíber and thousands more in Catral for example) is that the property is in possession of a valid building licence for something they didn’t actually build. So, the licence says we allow a small shed with a water deposit, which is permitted on rural land, to be built and what they actually build are luxury villas with nice pools and tennis courts. The property developers and the politicians fall off the edge of the world and the unsuspecting, completely innocent owners are left holding an invalid licence in one hand while someone shoves an order for demolition for their dream home, which they have only just started paying the mortgage for, in the other.
YOU cannot detect these problems. Even in your own countries, speaking your own language, you would have great difficulties unless you are a technician yourself. Here you have absolutely no chance of avoiding these pitfalls on your own. You also have absolutely next to no chance if you hire a lawyer provided to you by the estate agent that is trying to sell you the property. YOU NEED AN INDEPENDENT LAWYER and I’m going to see that you get one.
This week I am going to speak to the college of lawyers in Alicante to arrange a process whereby foreigners can just click on their webpage and request one. I’ll let you know how I get on.
John Kirby is a Technical Architect and Building Engineer (UPV), having won the award for outstanding academic achievement. He is the first foreigner to win that award and the only foreigner to ever be Municipal Technical Architect in Spain and a Judicial Property expert witness in Spain. He is Commissioner for Expatriates of the Valencian government and Ambassador for Spain and Gibraltar for Chartered Association of Building Engineers (UK).
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