Illegal Construction Works in Andalusia

Illegal Building Works in Andalusia

Regularization of Illegal Buildings in Andalusia

Architect Daniel Trujillano
http://www.arquitectotrujillano.com/legalization/home.html
Legalization of Buildings in Andalusia

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

Legalization and Occupation in Andalusia (II)

The Occupation of Legalized Buildings in Andalusia (II)

Occupation License for Expired Buildings that do not Require Adaptation Works

The Urban Discipline Regulations in Andalusia (RDUA) provide the documentation needed for obtaining an Occupation or Utilization License for buildings with expired deadline for the adoption of measures to protect the urban legality. If the building with expired deadline does not require the performance of any building works for the adaptation to the intended use, the documentation required for obtaining the Occupation or Utilization License depends on whether the works comply or not with the urban planning regulations.

Prescribed Building Works that Comply with the Urban Planning

If the building works conform to the urban regulations, the document needed for obtaining the Occupation or Utilization License shall be a Descriptive and Graphic Certificate stating:

• the date of completion of the works
• review about the condition of the building and of its installations
• accreditation about the fitness of the property for the contemplated purpose
• cadastral and registry identification (if applicable)
• current urban conditions
• documentation attesting the correct operation of the installations
• where applicable, certification by the supplier companies about the feasibility of the access to all building installations, without the need of new works.

In this case, the granting of the Occupation or Utilization License will involve a simultaneous recognition of legalization by prescription.

Prescribed Building Works that do not Comply with the Urban Planning

If the works do not conform to the urban planning regulations (in any case, the use must be in accordance with the urban planning) the documentation needed for obtaining the Occupation or Utilization License shall be:

• statement of the Situation of Assimilated to Outside Planning (SAFO)
• review about the condition of the building
• description of the operation of the installations, including certification by the supplier companies.

In this case, the granting of the Occupation or Utilization License will involve the simultaneous recognition of the declaration of SAFO.

Architect Daniel Trujillano

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

Legalization Documents for Building Works in Andalusia

Legalization and Occupation in Andalusia (I)

The Occupation of Legalized Buildings in Andalusia (I)

Legalization Projects and Occupation Licenses

In Andalusia, when the building works finish, whether with a granted building permit or not, upon completion it will be necessary to obtain an administrative approval for the occupancy and/or utilization, bound for the intended use of the building. Such approval will be formalized by an Occupation License if the building use is residential, and by an Utilization License in the case of any other building use.

Occupation or Utilization License for Buildings with a Building Permit

If the building works are performed counting with a granted building permit, the granting of the Occupation or Utilization License will require to verify that the finished works comply with the terms of the building permit, so it will be necessary to submit the following documents:

• a Statement about the Conformity of the works with the Construction Documents
• documents attesting the functionality of the installations
• the Final Performance Certificate, attesting the completion of the works.

If it turns out that the performed works don't comply with the terms of the granted building permit, the granting of the Occupation or Utilization License will require the prior (or simultaneous) legalization of the performed works, or the replacement of the altered physical reality.

Occupation or Utilization License for Buildings without a Building Permit

The legalization of building works performed without a building permit or breaking the conditions of a granted building permit, restores the disturbed legal order, for the sake of its substitute character of the building permit, but it does not provide for itself the licensing of the occupation or utilization, which will have to be the subject of further administrative actions. In fact, the legalization of a building does not even require that the works are completed, contrary to what happens with the occupation. The application of an Occupation or Utilization License is also required for completed buildings recognized in Situation of Assimilated to Outside Planning (SAFO).

Compliance with Urban Planning

The verification of the compliance with the Urban Planning regulations is not an attribution of the Occupation or Utilization License, but obtaining an Occupation or Utilization License for completed parties which are technically and functionally independent of the rest requires that these parties comply with the Urban Planning regulations and that the rest of the building shows no significant disagreements.

Architect Daniel Trujillano

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

Legalization Projects for Building Works in Andalusia

Legalization in Andalusian Un-Developable Land

Legalization of Buildings on Un-Developable Land in Andalusia

Regime of Buildings on Un-Developable Land

In Andalusia, the buildings built on un-developable land (with or without planning permission) which comply with current territorial and urban planning, are subject to the regime established by the Andalusian laws on urban planning for all kinds of land. However, in the case of building works performed without a license or violating the conditions of a granted license is always mandatory to apply for a license (IE, the legalization of the works), whether or not they are completed, and no matter how much time elapsed since the end of the works. While in other types of land the general rule is not forcing the legalization of works in which the offense has expired if they are in conformity with the urban planning regulations, the Decree 2/2012, regulating the regime of buildings and settlements on un-developable land in Andalusia, forces the legalization of any building works performed on un-developable land, although the urban infraction has legally expired. That is, in Andalusia, for the restoration of the disturbed legal order on un-developable land, if the legalization of the works is possible, then there is actually no expiring time frame for the urban planning infractions.

Detached Properties Built Before 1975

Andalusian Decree 2/2012 provides that the regime of the detached properties built without a license on un-developable land and completed prior to the entry into force of the Spanish Land Law of 1975 is assimilated to the regime of the properties built with a granted license, but only if they still carry the same use and typological features that they had before the entry into force of the Land Law and they are not in legal status of urban ruin. Depending on whether or not they conform to the current legislation, those buildings are considered:

• legalized, if they comply with all current regulations
• in legal status of outside planning, if they don't comply.

The recognition of the Situation of Assimilated to the Out of Planning regime (SAFO) is not applicable, because the status of this kind of buildings is comparable to that of the properties built under a granted license. For each building performed without any building permit on un-developable land prior to the entry into force of the Land Law of 1975, is necessary to obtain a municipal certification attesting whether the agreement with the urban planning or the legal status of outside planning, depending on the accordance between the performed works and the territorial and urban planning regulations.

Architect Daniel Trujillano
http://www.arquitectotrujillano.com/legalization/home.html
Legalization Projects for 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

Buildings Assimilated to the Outside Planning Regime (II)

Properties Assimilated to the Outside Planning Regime (II)

Technical Certificate for Particularized Recognition

The particularized recognition of a building assimilated to the outside planning regime provides a valid document for the definitive hiring of the services provided by the suppliers of electricity, water, gas and telecommunications. It also allows access to the Property Registry for the recognized building, by the inscription with notice about its particularized situation. After obtaining recognition, all repair and maintenance works required by the strict preservation of the safety and health conditions of the building will be authorized.

The Technical Certificate

Normally, the inscription in Title Deeds of buildings performed under the prescription of an urban infraction will require a technical certificate stating about the description and the antiquity of the performed works. However, to obtain the resolution of building assimilated to the outside planning regime, such certificate should contain:

• complete identification of the affected property, indicating the number in the Property Registry (if it's already registered) and geographic location by cadastral reference
• date of completion of the building, properly accredited by any valid evidence document
• the use to which the property is intended
• expert opinion about safety, habitability and health conditions, considering the building use
• expert opinion about the installations, considering the autonomous character, the environmental sustainability and the current regulations, and considering the building use
• if the building lacks of some installation, a description of all necessary works needed for the provision of every basic service required.

In other words, the procedure for the recognition of building assimilated to the outside planning situation requires drafting a set of technical construction documents, and not just a certificate of antiquity.

Architect Daniel Trujillano
http://www.arquitectotrujillano.com/legalization/home.html
Legalization Documents for Buildings in Andalusia

Buildings Assimilated to the Outside Planning Regime (I)

Properties Assimilated to the Outside Planning Regime (I)

Particularized Recognition. Resolution and Consequences.

The Andalusian Urban Discipline Regulations specify that the works, installations, facilities and buildings made in breach of the Urban Planning regulations, for which is no longer possible to adopt measures for protecting and restoring the legality, because of the time elapsed, become Assimilated to the Outside Planning Regime. In this situation, the registration of the building in the Property Registry requires that the competent authority, ex officio or upon request, provides the Particularized Recognition of the situation. The administrative procedure for obtaining the resolution of Assimilated to the Outside Planning Situation is not compulsory and is subject to the payment of a fee.

Consequences of the Particularized Recognition

Although obtaining the Particularized Recognition of Assimilated to the Outside Planning Regime does not mean the legalization of the performed works, it does involve at least one official recognition about the following circumstances:

• the very existence of the building
• the absence of any punitive proceedings
• the legal impossibility of adopting any measure involving the restoration of the disturbed legal order or the replacement of the altered physical reality
• the location outside any special protection un-developable land, outside the Area of Shoreline Influence, and outside areas for public facilities
• the location on a land without risk of erosion, landslides, floods or other natural or artificial risks.

Title Deeds and Particularized Recognition

The granting of the Title Deeds does not require to provide the Particularized Recognition of Building Assimilated to the Outside Planning Situation. The particularized administrative resolution can be obtained afterwards.

Resolution and Administrative Silence

The administrative procedure needed for obtaining the Recognition of Assimilated to the Outside Planning Situation can result in a refusal. In addition, the administrative silence is, in these cases, negative.

Architect Daniel Trujillano
http://www.arquitectotrujillano.com/legalization/home.html
Legalization Documents for Buildings in Andalusia

Legalization of Buildings on Undevelopable Land

Legalization Projects on Undevelopable Land

Communication. License. Settlements on Undevelopable Land. Inspection Plans.

Andalusian Decree 2/2012 establishes the regime of buildings and settlements on Undevelopable Land in Andalusia.

Administrative Communication

Among the detached buildings on Undevelopable Land, Andalusian Decree 2/2012 differentiates the buildings that conform to the current Urban and Territorial Planning, and within that classification, it differentiates the buildings that have been built without any Building Permit or violating the conditions of a granted Building Permit. For such buildings, the Decree provides that the City Council should notify the owner about the opportunity to formalize the legalization.

License and Legalization in Andalusia

Notwithstanding the administrative requirement of legalization, the owner should always apply for the License, according to the procedure described in the Andalusian Law on Urban Planning (LOUA) and the Urban Discipline Regulations.

Urban Settlements in Undevelopable Land

The legalization of completed buildings belonging to urban settlements in Undevelopable Land requires the following circumstances:

• they must comply with the Urban Planning
• the urban infrastructure must be endorsed by the City Council
• all legal obligations established by the LOUA must be fulfilled.

If the buildings are still under construction, the legalization will also require:

• all urban infrastructure works should be previously performed, or
• all requirements imposed by the LOUA for the simultaneous development of infrastructure works and building works should be fulfilled.

Municipal Plans of Urban Inspection

Among all the documents required by the Urban Discipline Regulations for the Municipal Plans of Urban Inspection there must be an inventory including an identification of all the buildings, settlements, subdivisions and other actions that should be included in a legalization process, according to the applicable Territorial and Urban Planning, for each class and category of the land.

Architect Daniel Trujillano

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

Legalization Documents for Building Works in Andalusia

PD03. Legalizing Building Works in Andalusia

http://www.arquitectotrujillano.com/legalization/home.html
Legalization Projects for Construction Works in Andalusia

Info03. Legalization of Building Works in Andalusia

Architect Daniel Trujillano

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

Legalization Documents for Buildings in Andalusia

Video 04: Legalization Process for Construction Works in Andalusia

Architect Daniel Trujillano
http://www.arquitectotrujillano.com/legalization/home.html
Legalization Documents for Buildings in Andalusia

PD02. Legalization Documents for Construction Works in Spain

Legalization Documents for Building Works in Spain from Arquitecto Daniel Trujillano

http://www.arquitectotrujillano.com/legalization/home.html
Technical Documents for the Legalization of Construction Works in Spain

Info02. Legalization of Buildings in Spain

Architect Daniel Trujillano

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

Legalization Documents for Buildings in Spain

Video 03: Legalization Projects for Construction Works in Spain

Architect Daniel Trujillano
http://www.arquitectotrujillano.com/legalization/home.html
Legalization Projects for Buildings in Spain

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

Legalization Documents for Buildings in Spain (I)

The Legalization of Buildings in Spain (I)

Legalization as a Method to Restore the Perturbed Legal Order

In Spain, when construction works are performed without having a building permit or violating the conditions in a granted building permit, the legal order is considered perturbed. The right method for restoring the legal order depends on whether the performed works are or not compatible with the applicable urban planning. If the performed construction works are not compatible with the urban planning, the only way to restore the legal order will be resetting the physical reality to its original state, which will involve demolishing what has been built, but if the works are compatible with urban planning, there will be another solution: legalizing the performed works.

Deadline for Applying for Legalization

When a developer is required for legalizing construction works performed without a building permit (or violating the conditions in a granted permit) he should apply for the legalization within a specific time frame wich, in Andalusia, is two months. That time frame can be expandable in response to the complexity of the project.

After the Application

It's neccesary to keep in mind that, having applied for legalization, it's still possible that finally the demolition of what was built gets ordered. If the legalization is applied and is denied, it will be neccesary to restore the physical reality and therefore to demolish what was built. The same applies if, after applying for the legalization, the result is the legal inadmissibility of the acts, because of non-conformity with determinations in applicable legislation and urban planning.

Penalties for Non-Compliance

If after the time granted to the developer in order to legalize the construction works, he doesn't apply for the legalization, successive coercive penalties will be imposed. In Andalusia, the amount of such penalties is, each time (penalties are imposed for minimum periods of one month), ten per cent of the value of the completed building works, with a minimum of 600 euros.

Infringement Procedure

When the alleged commission of an urban planning infringement is noticed, it produces the initiation, investigation and resolution of a disciplinary proceeding. This legal procedure is instructed and resolved regardless of the procedure derived from the requirement for the legalization of the construction works, but in a coordinated manner.