How to reduce a fine for illegal building works in Mallorca?

Analysis and definition of the strategy

Once the case has been analysed with the information provided by the client and the public means of proof available to the Administration, what we do at desalvador is to set out the legal consequences facing the client, as well as to prepare the defence strategy, which can be approached in two different ways:

• Focusing on proving the client's innocence or the statute of limitations of the offence.

• Aiming to reduce the possible sanction, in the event that the previous route is not possible.

We must remember that all urban planning infringement proceedings are attacked in two ways: the fine or sanction and the "reinstatement measures", i.e. the legalisation of the infringement or, ultimately, demolition. The defence options are unique to each case,

The reductions provided for in the Law

The current LUIB includes different reductions to the economic sanction according to the different cases. Since October 2020, they are as follows:

• If the works are compatible with urban planning and legalisation is requested:

  • Within the deadline (two months from the start of the proceedings), the penalty is reduced by 50%.

  • After the deadline, but before the sanction is imposed, the sanction is reduced by 40%.

These reductions are only possible if a suspension order has not been breached.

• If legalisation is not possible and the altered reality is restored (demolition):

  • The sanction is reduced by 60% if demolition is carried out before the resolution of the proceedings orders it. 

  • The sanction is reduced by 50% if demolition is carried out after the resolution of the proceedings, but within the established period.

• In addition, Article 202 LUIB includes additional reductions, which are compatible with the above:

  • If you recognise liability: 20% reduction.

  • If you recognise liability and voluntarily pay the fine: 40% reduction.

EXAMPLE: The proceedings are initiated with a proposed decision stating that a fine of €200,000 is to be imposed. Only with the reductions foreseen in the LUIB could the sanction be reduced from €200,000 to €60,000

Initial proposed penalty: €200,000.

Compatible works + Legalisation urged: 50% reduction > Penalty 100.000 €

Recognition and advance payment: Additional reduction 40% > Penalty 60.000 €.

In any case, it should be taken into consideration that it applies a minimum per offender of €600, irrespective of the reductions of 202 LUIB already mentioned above.

Finally, it should be noted that the change of approach that the Law underwent in 2020 is relevant. While, with the approval of the Law, they defended that the purpose was not to collect but to restore the legal order (with reductions that left the fine at a minimum), with the entry into force of Law 2/2020, of 15 October, the possible reductions initially envisaged were reduced by almost half, so that the amount of the penalties is currently notably high.

Thus, until 20 October 2020, the reductions were as follows:

• If the works are compatible with urban planning and legalisation is requested:

  • Within the deadline (two months from the start of the file), the sanction is reduced by 95%.

  • Outside the deadline, but before the sanction is imposed, the sanction is reduced by 80%.

These reductions are only possible if a suspension order has not been breached.

• If legalisation is not possible and the altered reality is restored (demolition):

  • The sanction is reduced by 90% if demolition is carried out before the resolution of the proceedings orders it. 

  • The penalty is reduced by 80% if the demolition is carried out after the resolution of the proceedings, but within the time limit.

Other ways to reduce the penalty

Along with the application of the legal reductions, there are other ways to reduce the final amount of the sanction that the administration intends to impose. For this, it is necessary to know in detail the object and provide the necessary evidence to allow the administration to take into consideration the specific circumstances that allow such a reduction.

Assessment of the works

On some occasions, the proposed resolution that initiates the proceedings contains a basic error: it values as housing accessory constructions (sheds, garages, henhouses), which have hardly any constructive entity. In these cases, it is possible to obtain substantial reductions in the penalty by pointing out the error and proposing the correct valuation. For example: If you intend to penalise the construction of 20 m2 of shed (without side walls), the valuation can be around €20,000 or €6,000 depending on the type of work considered.  It is important to bear in mind that the valuation is always based on objective criteria provided for in the price books of the technical colleges, and not on the actual cost of the work.

Defending partial prescription

In those cases in which the building has been carried out over time, and provided that they are separate buildings on the same property, it may be possible to allege the prescription of some elements, so it would not be possible to impose a penalty for this infringement. In this sense, if 150 m2 of built-up area is being valued and we can prove that 100 m2 are time-barred, we can reduce the penalty by 1/3 of the amount initially envisaged.

Application of mitigating factors

The penalties provided for in the LUIB always include a range within which the penalty can be imposed. If no circumstances modifying liability are found, the penalty must be imposed at the average rate. However, if we are able to demonstrate the existence of attenuating circumstances, we can reduce the amount of the penalty.  In accordance with Article 184 LUIB:

2. The following shall be extenuating circumstances:

a) Not having the intention of causing serious damage to the public or private interests affected.

b) Voluntarily repairing the damage caused prior to the initiation of the sanctioning proceedings.

c) To stop the works or cease the activity or use, voluntarily, before the administration adopts the precautionary measure of suspension.

3. The following shall be circumstances which, depending on each specific case, mitigate or aggravate liability:

a) The degree of knowledge of the legal regulations and of the technical rules of compulsory observance by reason of the trade, profession or habitual activity.

b) The benefit obtained from the infringement or, as the case may be, the commission of the infringement without considering the possible economic benefit.