Can a building registered in the Spanish Land Registry be illegal?

No one can dispute that the Land Registry provides very useful information when acquiring a property. Requesting a nota simple provides us, at a reduced cost, with useful information that in other legislations takes much more time and work, information that, in addition, will provide us with certain guarantees if we finally acquire a property from the person who is registered. However, the Land Registry has its limitations. One of these is the urbanistic situation of the property, 

The planning status of the property is not usually checked by either the notary or the land register, as this is a matter that falls outside the general area of civil law.

The purchaser of a property is rarely aware that he may be obliged to demolish his property because it is illegal, or that this illegality may make it impossible for him to apply for new licences that would allow him, for example, to renovate his property legally, as we have pointed out in previous posts (for example, here).

What is an illegal building?

A building is illegal in planning terms when it does not comply with planning law. Given that urban planning regulations are the responsibility of the different autonomous communities, we cannot give a detailed list of each and every one of the actions that imply an urban planning infringement, but we can highlight the most common ones:

• Building constructed on non-compatible land: This is a building that has been constructed on land that does not permit construction. The urban planning laws of our country establish differences between the different types of land and what can be done with each of them.

  • In some places you can build, in others you can't, in some you can build schools, in others housing and in others shopping centres.

  • Each type of land is different. Therefore, if you are going to buy land to build a house, the first thing to do is to find out about the urban planning situation of that land, as it may not be possible to build the house you want.

• Building that does not comply with the urban planning parameters: This is a building that does not comply with the "forms" that it must comply with.

  • The urban planning laws establish the conditions that each building must comply with: from the square metres that can be built or the floors it can have to the size of the windows or the width of the corridors.

  • If a plot can be built on, what can be built on it is also limited by law, so it may be that, although we have enough land, the swimming pool does not "fit", or the house has to be smaller than we thought it would be.

• Building carried out without applying for the corresponding permits and authorisations: This is a building that has been constructed without having applied for the necessary permits from the Town Hall.

  • In general, important actions on a house always require a licence (whether to build the whole house, to make it bigger, to build a swimming pool or simply to change the location of a window or close a balcony).

  • Therefore, it is not only necessary to check whether the house has a licence, but also what exactly that licence allowed to be done. There may have been subsequent modifications, and we may be left without a swimming pool.

All of the above can apply to a whole building or just to part of it (the one that has been built illegally).

Is it still illegal if it cannot be demolished?

Prescription vs. Legalisation

Notwithstanding the above, the powers of the administration in respect of an illegal building are, in most cases, limited in time by the mechanism of "prescripción" (statute of limitations). This mechanism means that after a certain number of years have passed since the completion of an illegal building, the administration can no longer order the demolition of the building.

The statute of limitations for urban planning infringements varies according to each autonomous community: 4 years in Madrid, 6 years in Andalusia, 8 years in the Balearic Islands, etc., to name but a few.

Even if the statute of limitations expires, the house will continue to be illegal.

However, we must be clear that the statute of limitations is not a legalisation. Even if the infringement is time-barred and no measures can be taken to re-establish urban legality, the house will still be illegal. Legalisation can only be achieved by means of a project signed by a competent architect or technician, paying the fees at the Town Hall, as if the house had been built legally from the beginning.

In some cases, it is possible that the building cannot be legalised because it is totally incompatible with the planning, and in other cases it may be necessary to demolish those parts of the house that are incompatible with the planning, adjusting the building to the parameters in force at the time legalisation is sought.

A house can only be legalised if a competent architect or technician draws up a legalisation project (although not all houses can be legalised).

The main problems with illegal buildings are, apart from their valuation for expropriation purposes (something that should not be worth anything), the fact that they are buildings tending to ruin, since it will not be possible to request licences to carry out works on them at any time, as we have already pointed out in this post. In addition, we must be aware that there are certain types of land in which the infringement never prescribes, so we can find ourselves in a situation in which the house can be demolished at any time.

 If the house is illegal... why does it appear in the Land Registry?

If so far we have talked about urban planning illegality, now it is time to put it in relation to the Land Registry to answer the question that is the title of this entry: Can something that is in the Land Registry be illegal?

In law, the answers are usually full of nuances, but not in this case. The answer to the question can only be a resounding yes: a building can be illegal despite being registered in the Land Registry.

Having said that, we must answer the second question: Why is it in the Land Registry if it is illegal?

The Land Registry is an eminently civil register, so, with few exceptions, it does not include the town planning situation. It should also be remembered that the Land Registry is governed by the principle of rogation, which means that, in order for it to record the urban development situation of a specific property, it must be the administration that requests the registration.

The Law (specifically RD 1093/1997) establishes the requirements that must be fulfilled in order to register a new building in the Land Registry. Aware that the principle of registry rotation means that there are many issues (perfectly legal) that did not have access to the Register at the time (due to lack of knowledge, savings, etc.), the Law also provides a mechanism so that "old" buildings can be registered, understanding as such those for which the limitation period for the urban planning infringement has passed. To do this, it must be demonstrated by the specifically authorised means (technician's certificate, land registry or Town Hall certificate) that the building was completed on a certain date and that the legal periods for the prescription of the infringement have elapsed, which is why we can find properties registered in the Land Registry that are illegal.

In order for the Land Registry to reflect a certain urban development situation, it must be the Town Hall that notifies it, which it rarely does.

After the entry into force of the RD 2/2008, of the Texto refundido de la ley de suelo, article 20 obliges the Registries to communicate to the respective Town Halls the inscription of the new works carried out without a certificate of antiquity from the Town Hall. Once this notification has been received, the Town Council must issue an administrative resolution expressly stating the town planning status of the building. However, the town councils rarely carry out this procedure, so that the urban planning status of the properties remains outside the Property Register.ntinúa ajena al Registro de la Propiedad.