Town planning problems in the purchase of rustic properties in Mallorca

Despite the fact that since 1956 Spain has had a Land Law which regulates construction activity and obliges the application for administrative permits in order to carry out renovation and construction work on buildings, the traditional passivity of the administration in pursuing infringements has consolidated the existence of numerous illegal buildings throughout Spain.

Mallorca is no different in this respect. The fact that the Town Councils were responsible for the control of town planning discipline has encouraged passivity and, in those cases where action was taken (either because they were flagrant or because there had been a complaint), the issue ended up being resolved over a meal with the mayor and the payment of a fine.

The present day

Unfortunately for offenders, this is no longer the case: In Mallorca, a supra-municipal body has been created, the Agencia de Defensa del Territorio (Territorial Defence Agency), with an island-wide scope, which oversees compliance with regulations on rural land throughout the island, and which carries out continuous ex officio inspections, ordering the demolition of numerous properties every year.

This, together with the entry into force on 1 January 2018 of the Urban Planning Law of the Balearic Islands (LUIB), which establishes the non-prescription of the power to re-establish the disturbed legal order on all rustic land (previously reserved exclusively for highly protected land), has made the urban planning review of properties, especially on rustic land, increasingly important.

What does the "non-prescription of the power to re-establish the disturbed legal order" mean?

It means that, once illegal works have been carried out on rural land, and from 1 January 2018, 10, 15 or 20 years may pass before the Administration decides to take action against the property, either by ordering its legalisation or its demolition.

At any time, the Administration may open the corresponding file requesting the demolition of the swimming pool that was repaired because it was leaking, the porch that was closed to make a new room, or the house whose roof was repaired because a windstorm caused damage, with the consequent risk for any future owner of the property.

For this reason, it is necessary to carefully analyse the urban situation of a property before buying it, in order to avoid potential problems.

Allegal dwellings? What does "out-of-plan" status imply?

On many occasions you may be informed that a property is "legal" because it is registered in the land registry and cadastre, but this does not imply anything in terms of urban planning legality, as we have already explained in previous posts . In other cases, they may tell you that the property is "alegal", stating that an infraction was committed, but that it is time-barred.

However, the situation of alegality does not exist in urban law. Buildings built totally or partially without the corresponding administrative permit are out of order. The LUIB, in its article 129.2 establishes for these constructions that:

1. In buildings or constructions executed without a licence, although measures involving demolition can no longer be taken, no work of any kind may be carried out. Therefore, it is not possible to carry out interior alterations or extensions, but not even repairs (fixing leaks, changing windows, repairing a leaking swimming pool, etc.).

2. In buildings that are legally established, but in which extension works have been carried out:

   1. In the legal part, you can carry out all kinds of works, except for extensions.

   2. In the illegal part, no work of any kind can be carried out.

Is it possible to buy an illegal house?

It should also be noted that it is legally valid to buy an illegal house, either in whole or in part. For this reason, it is very important to analyse the situation of the property.

In the purchase process, it is common to demand town planning documents, but it is important to know what information each of them provide, since documents such as the "Cédula de habitabilidad" or the "Certificado municipal de inexistencia de expedientes" do not guarantee the legality of the property.

Certificate of habitability

The "cédula de habitabilidad" is a document that indicates that the property meets the requirements to be habitable as a dwelling. For properties built after 1986, it is necessary for the property to have been built with the corresponding licences, but not for properties built before that date, for which it is necessary to prove that they were finished before 1987. Therefore, we can find houses built between 1956 and 1987 which are illegal, but which have a certificate of habitability.

Municipal certificate

In terms of urban planning infringements, town councils can issue two types of reports: those of urban planning suitability or those of non-existence of proceedings. The fact that there are no proceedings does not imply that the works are legal, but rather that there are no proceedings open. It is therefore very important to understand which document is being presented to us.

So... what do I need?

In order to know the town planning situation of a property, it is necessary to have either a municipal report of town planning suitability, or to ask an expert architect for a town planning report of the property. The municipal report has the disadvantage that it takes longer and that, on many occasions, the owner does not wish to request it, for fear that they will detect infringements and open the corresponding disciplinary proceedings. Reports issued by architects are usually much clearer and quicker.

The problem of buying a building that is out of order

When buying a property that is totally or partially out of planning, we must bear in mind the above, especially because the LUIB itself states in article 193.2 that "If the pre-existing construction, building, installation or use is out of planning, in accordance with the provisions of article 129.2 of this law, the re-establishment of the altered physical reality may in no case entail the recovery of the pre-existing construction, building, installation or use".

This implies that, if it is not possible to legalise the out-of-order building or volume and works have been detected, it will be necessary to demolish that part completely, thus losing what has been gained by prescription. This, together with the non-existence of a statute of limitations to order demolition, makes it especially important to analyse the urbanistic situation of a property in Mallorca before purchasing it.