The Risks of "Out-of-Plan" Constructions in Mallorca: A Legal Perspective
30/08/2023 | Real Estate Investment
Tiempo de lectura: 3 minutos
The purchase and ownership of "out-of-order" buildings in Mallorca come with a myriad of legal and practical risks that real estate actors and prospective buyers must fully comprehend. Contrary to the popular notion that such constructions are "alegal", the reality is that they are illegal in terms of urban law and subject to stringent regulations, particularly under the Urban Planning Law of the Balearic Islands (LUIB).
It's crucial for both sellers and buyers to be well-informed about the legality and limitations that come with owning a property in this predicament. Not only are future renovations or constructions limited, but non-compliance could trigger legal actions and significantly depreciate the property's value. Such comprehensive understanding is key for effective and compliant real estate management in the region.
No Such Thing as "Alegal"
In the realm of real estate, it's not uncommon to hear the term “alegal” being used to describe a property in an "out-of-plan" situation. However, it's crucial to clarify that there's no such legal category as “alegal” in urban law. The terminology is binary: if a property is not in accordance with the law (legal), then it is against the law (illegal). Misusing the term “alegal” shows a lack of understanding of urban law and the specific regulations set forth by the Balearic Islands.
Defining "Out-of-Plan" Construction
According to the Urban Planning Law of the Balearic Islands (LUIB), a construction can be "out-of-plan" under three circumstances:
Buildings subject to expropriation, compulsory and free transfer, or demolition.
Constructions completed without a license or with a revoked license, where no legal restitution involving demolition is applicable anymore.
Constructions initially done legally but later altered or expanded without the necessary permits, or with a revoked license.
For the situations outlined in points 2 and 3, such constructions are illegal, as they were undertaken without the required permits. The crux here is that administrative action has elapsed due to the statute of limitations.
Historically, enforcement of urban infractions in Mallorca has been lax, leading to a significant number of buildings being partially or wholly out-of-plan, especially on rural land. However, administrative oversight is tightening, making caution indispensable.
The Legality of Purchasing "Out-of-Plan" Homes
Yes, one can legally acquire a property that is partially or wholly out-of-plan as there are no civil legal impediments. As legal advisors, we stress the importance of buyers understanding and accepting the inherent risks.
To ascertain the planning status of a property, two documents are paramount:
The urban adequacy certificate, issued by the local council; or
An expert architectural report, analysing the municipal records to define the property's legal standing.
Other documents like property summaries, cadastral information, or habitability certificates are not definitive indicators of a property's legal standing concerning urban law.
Caveats of Owning an "Out-of-Plan" Property
While purchasing an "out-of-plan" property is legally feasible, it comes with limitations that may not affect immediate use but could hinder future developments and consequently depreciate the property value.
Urban law for out-of-plan buildings is stringent: "No type of work may be carried out on buildings or facilities that are out-of-plan.” If a building is only partially out-of-plan, while maintenance and safety-related works can be undertaken on the legal part, absolutely no work can be done on the illegal section.
Therefore, the risk is considerable; even essential repairs like fixing a leaky roof after a storm are proscribed, ultimately encouraging the building's decline into ruin.
desalvador | Real Estate Lawyers Mallorca
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