Legalization and Occupation in Andalusia (III)

The Occupation of Legalized Buildings in Andalusia (III)

Occupation of Buildings with Expired Urban Offense and Requiring Adaptadion Works. Occupation of SAFO Buildings in Un-Developable Land.

In Andalusia, when a building expired in terms of the deadline for adopting measures for the protection of the Urban Planning Law requires the performance of works for the adaptation to the intended use, two situations can arise:

• that the building complies with the urban planning regulations, in which case, after obtaining the recognition of the accordance situation, it shall be tacitly recognized as legalized by prescription, at the moment the authorization of the required works gets granted, and at the completion of the works it will proceed to obtain the Occupation or Utilization License
• that the building does not comply with the urban planning regulations (in any case the use must be in accordance with the planning), in which case it will be necessary to obtain the statement of the Situation of Assimilated to Outside Planning (SAFO) before obtaining the authorization of the necessary works, which shall never exceed those required by the strict maintenance of the security, living and sanitation conditions, and at the completion of these works the granting of the Occupation or Utilization License will proceed.

Occupation of Buildings Declared in SAFO and on Un-Developable Land

Andalusian Decree 2/2012, about the regime of the buildings and settlements on un-developable land, states that the buildings declared in Situation of Assimilated to Outside Planning (SAFO), because of their illegality and disagreement with the urban planning, can never obtain an Occupation License, even if the offense has expired. Actually, the only thing preventing from obtaining the Occupation or Utilization License is the disagreement of the building use. However the same document expressly permits that, after obtaining the recognition of the Situation of Assimilated to Outside Planning, buildings may be affected by the intended use thereof, even if this use disagrees with the urban regulations and planning. The declaration of SAFO, along with its permission of use, enables the supplier companies to provide the basic services, and enables the notaries and registrars to make the registration of the building in the Property Registry.

Unlicensed Buildings Constructed Before 1975 on Un-Developable Land

Andalusian Decree 2/2012 provides that all detached buildings built without planning permission on un-developable land and completed before the entry into force of the Land Law of 1975 are entitled to obtain the Occupation or Utilization License, provided that the building use is the original one or is in accordance with the current urban planning regulations.

Occupation of Buildings on Developable Land and Unconsolidated Developed Land

The buildings on Developable Land and Unconsolidated Developed Land can not receive any Occupation or Utilization License, because the Law on Urban Planning of Andalusia (LOUA) states as a prerequisite that the development works should be completed previously.

Architect Daniel Trujillano

http://www.arquitectotrujillano.com/legalization/home.html

Legalization of Buildings in Andalusia

Limitation Periods for Urban Offenses in Andalusia

Time Limits for Urban Offenses in Andalusia

Rules for the Legalization of Illegal Buildings

In Andalusia, the Urban Discipline Regulations (RDUA) and the Andalusian Law on Urban Planning (LOUA) establish the following limitation periods for urban offenses:

• for important and major offenses: 4 years
• for minor offenses: 1 year.

Such limitation periods represent the timeframe within disciplinary proceedings can begin, although for the adoption of measures for the reinstatement of the disturbed civil order, either by legalizing the works or by replacement of the altered physical reality (demolition), the timeframe is 6 years since the full completion of the works.

Illegal Constructions with Prescribed Urban Offense

The type of procedure applicable to the buildings performed without building permit or violating the conditions of a granted permit, in which the urban infraction is already prescribed will depend on the situation:

• if the performed works are clearly in disagreement with the urban planning it will be necessary to obtain the recognition of Situation Assimilated to Outside Planning regime (SAFO)
• if the performed works are in conformity with the urban planning and they are completed, its occupation and use, and also the performance of any works on them, will require the recognition or accreditation that the works are in situation of urban conformity, and the legalization will be automatically granted by prescription.

If the performed works are in conformity with the urban planning but they are still not completed, the urban offense cannot be considered prescribed, so the legalization will be mandatory.

Rules for the Legalization of Building Works in Andalusia

The legalization of building works performed without building permit, or violating the conditions of a granted permit, is subject to the same documentary, procedural and adjudicative rules that apply for obtaining a building permit. In other words, the legalization of building works is proposed as an equivalent substitute for the building permit. The current urban legislation in Andalusia (LOUA and RDUA) does not specify the required documentary content for the Legalization Projects, but in establishing that the rules for the application are the same as for building permits it suggests that the documents needed shall be equivalent to the Construction Documents established by the RDUA for the processing of building permits.

Architect Daniel Trujillano

http://www.arquitectotrujillano.com/legalization/home.html

Legalization Documents for Buildings in Andalusia

Legalization of Buildings in Andalusia (II)

Legalization of Construction Works in Andalusia (II)

Effects of the Resolution. Light Nonconformities and Non-Fulfillment.

The resolution of the legalization procedure produces the following effects:

• if the license gets granted or, if applicable, the actions become considered consistent with their authorization, the construction works will be considered legalized
• if the license gets denied or, if applicable, the actions become considered not consistent with their authorization, an order for restoring physical reality will be issued.

Light Nonconformities

If the replacement of physical reality is considered difficult or impossible and the non-conformities of the performed works with applicable urban planning are not substantial, it will still be possible to apply and obtain legalization, exceptionally. In order to discern whether nonconformities with urban planning are substantial or not, current Regulations on Urban Infractions in Andalusia considers the following rating criteria:

• excess in floor area, in relation to authorized parameters
• visibility from the street
• affection of the performed construction works over the rest of the building complex
• robustness of the performed works
• affection to architectural barriers to the handicapped.

If the developer was formerly sanctioned because of serious urban planning offenses, he will not be able to benefit from the application of this principle.

Non-Fulfillment of the Legalization

If the time allowed in the process of protecting urban planning law expires and the developer does not apply for the legalization or, if applicable, does not fit the performed construction works to their authorization, the acting Public Administration will proceed according to the following cases:

• If the legalization is possible, it will impose up to 12 coercive fines, until the legalization gets applied or, if applicable, the performed construction works get adjusted to the authorization. If, after imposing the 12th fine, the correction has not yet produced, the replacement of the physical reality will be ordered, and the developer will be forced to pay for it.
• If the legalization is not possible, it will order the replacement of the physical reality.
• If the performed construction works are manifestly incompatible with the urban planning, the City Council, or other public entity responsible for urban planning, will order the immediate demolition of the works, after hearing with the developer.

Legalization Procedure and Disciplinary Procedure

The appreciation of the alleged commission of an urban planning offense should always give rise to the initiation, investigation and resolution of a relevant disciplinary procedure, no matter if the legalization is possible or not. The procedure derived from the requirement for the application of the legalization of the performed construction works, or for replacing the physical reality, should be instructed and resolved regardless of the disciplinary procedure, but both procedures should be developed in a coordinated manner.

Architect Daniel Trujillano

http://www.arquitectotrujillano.com/legalization/home.html

Legalization Documents for Buildings in Andalusia

Legalization of Buildings in Andalusia (I)

Legalization of Construction Works in Andalusia (I)

Legalization or Replacement. Procedure. Inspection Plans.

Between the provisions established by Decree 60/2010, about Regulation of Urban Infractions in Andalusia, are those governing the legalization of construction works performed with no license or violating the conditions in a granted license.

Legalization or Replacement

In Andalusia, if an act of urbanization, construction, or installation is subject to prior planning permission and is eventually performed without it, or against the conditions in a granted permit, the City Council shall order the immediate suspension of the works. After the suspension, the restoration of the disturbed legal order must be performed by one between the following procedures:

• if the performed works are compatible with current urban planning, through the Legalization of the Works
• if the performed works are not compatible with urban planning, through the Replacement of the Physical Reality to its original state.

All of the above also applies in the case of acts performed in breach of the terms of an Order by the City Council.

Procedure for the Protection of the Urban Law

If the works performed with no license, or against the conditions in a granted license, are compatible with current urban planning, the developer must be required to apply for the legalization or, where appropriate, to fit the performed works to the granted permit. If the developer chooses to legalize, he will have two months to apply for it; however, if the performance is very complex, he can apply for extend this period for two additional months.

Municipal Plans for Urban Inspections

According Andalusian Decree 60/2010, every Municipal Plan for Urban Inspections should count with an inventory containing, for each class and category of land, a relationship of buildings, settlements and other actions which must be subject to legalization, in conformity with all applicable territorial and urban planning regulations.

Architect Daniel Trujillano

http://www.arquitectotrujillano.com/legalization/home.html

Legalization Documents for Buildings in Andalusia