Consequences of illegal building works in Mallorca

Any type of building works in Mallorca require administrative authorisation, from a simple interior reform to the extension of a house, the construction of a swimming pool, earthworks or the creation of a tiled area to extend the terrace. There will be works in which a mere prior notification or a responsible declaration will be sufficient, due to their small size. In other cases, of greater importance, an administrative licence will be required. What happens if we do not request the corresponding administrative authorisation to carry out the works?

Restoration measures and sanctioning measures

Sanctioning measures

The best known measure is the imposition of financial penalties (fines).

Fines vary in amount, although the following are the main offences for which a specific sanction is envisaged in the event that they are committed without the necessary authorisation (licence):

• Construction, building, installation and earthmoving work on urban or developable land:

  • a fine of 50 to 100% of the value of the work carried out.

• Construction, building, installation and earthworks on rural land:

  • Unprotected: Fine of 100% to 250% of the value of the work carried out.

  • Protected: Fine of 250% to 300% of the value of the work carried out.

• Use of a property without an authorisation. This offence would be committed, for example, when changing the use of an agricultural area to a dwelling.

  • 25% to 50% if the use is permitted.

  • 50% to 100% if the use is not permitted or is conditional (e.g. storage rooms, premises or agricultural buildings converted to housing). 

It is important to note that, contrary to popular belief, payment of the penalty does not imply legalisation of the works. Likewise, accepting the fine does not mean that the works can be maintained, given that the law provides for the additional imposition of the so-called "measures to re-establish the disturbed legal order", so it is not surprising that the same illegal works involve both the imposition of the fine and the demolition of the works.

The fine is compatible with demolition orders, so it is not surprising that, in addition to paying a fine, everything that has been built has to be demolished.

Although the penalties are high, there are significant reductions which, if applied, render the fine virtually null and void if legality is voluntarily re-established.

Measures to "re-establish urban planning legality or physical reality".

In addition to penalties, there are measures to "re-establish urban planning legality or physical reality". This includes all measures aimed at eliminating the effects of illegal works.

It is understood that an urban planning infringement can have both physical effects (the construction) and legal effects (the illegality), and the regulations include mechanisms to restore both. Thus, if the legal effects are to be restored, the illegal works will have to be legalised (whenever possible), while if the physical effects are to be undone, they will have to be demolished.

To explain this more clearly, we will use the following example:

A private individual carries out illegal works on part of his house, extending it (he closes a porch and makes another one) and builds a swimming pool, all without applying for the necessary licences.

In the event that the existence of these illegal works is detected, an urban planning infringement procedure is initiated for the carrying out of these works, the measures vary depending on the compatibility of these works with the applicable regulations:

• If the works are contrary to town planning regulations, i.e. under no circumstances may works carried out under the protection of the regulations in force be authorised, the offender will be required to return the property to the altered physical reality, in such a way that it is physically as if the unlawful action had never been carried out. Demolition of the illegal works may therefore be required.

• If the works are compatible with the planning regulations, i.e. if the relevant licences had been applied for and could have been granted because the regulations allow the works to be carried out, the offender may restore the "legal order" by applying for the relevant licences and authorisations to legalise the works. In this way, the illegal works become legal works.

• If the works are partially compatible, it will be possible to request the legalisation of those parts that are compatible, and to demolish those parts that are not compatible (in our example, legalise the porches and demolish the swimming pool).

What happens if I do not want to demolish?

Additionally, in the event that the corresponding demolition works are not carried out, art. 194 LUIB establishes the possibility of periodic fines until the demolition order is complied with, as well as allowing subsidiary execution by the Town Hall (of course, at the expense of the offender).

If the offender does not comply with the final demolition order, up to twelve coercive fines will be imposed with a minimum periodicity of one month and with an amount, on each occasion, of 10% of the value of the works carried out and, in any case, a minimum of 600 euros.

These measures to re-establish the disturbed legal order can be initiated both by the Town Council and, in some cases, by the corresponding Island Council which, in the case of Mallorca, acts through the Territorial Defence Agency of Mallorca.

In addition, it should be noted that the Courts are imposing personal fines on mayors when they do not carry out subsidiary execution of demolition orders, so it is becoming increasingly common for these to be enforced.

The statute of limitations for urban planning infringements

Limitation periods

According to the regulations applicable in the Balearic Islands, the statute of limitations for serious and very serious penalties (art. 205 LUIB) and the procedure for the re-establishment of legal order (art.196.1 LUIB) are both 8 years from the full completion of the execution in question.

Along with this general period of 8 years, it should be noted that, with regard to actions on rural land, as well as other particularly burdensome actions, there is no limitation period for the adoption of measures for the restoration of the disturbed legal order, as established in art. 196.2 LUIB.

Since 1 January 2018, the possibility of demolishing an illegal work on rural land is never time-barred.

In these cases, although the penalty is time-barred (and therefore, a fine cannot be imposed), the possibility of demanding the restoration of urban planning legality is not time-barred, and demolition can be demanded at any time, despite the passage of more than 8 years. For all these reasons, we must be very cautious when initiating illegal actions in rural areas.

In addition to this, it should be remembered that, since the possibility of demanding reinstatement is not subject to the statute of limitations, it is also not possible to register the new construction due to age in accordance with the procedure for the declaration of new construction due to age.

Effects of the statute of limitations on the infringement

Notwithstanding the above, it should be noted that the passage of 8 years does not mean that the work carried out is legal, but only that it will no longer be possible to take punitive or reinstatement measures. As a consequence, the works will continue to be illegal, and the property (or the part of the property built without a licence) will be considered to be out of order.

An illegal construction remains illegal even if the infringement is time-barred and the administration cannot act.

The out-of-order situation is highly burdensome. According to the regulations, no building work of any kind (neither maintenance, nor interior alterations, nor, much less, extensions) can be carried out on illegal constructions. So, in the event of new works, these would be illegal again and the statute of limitations would be lost, with the risk that a measure involving demolition would be imposed.

If work is carried out on an out-of-order construction, the prescription is lost and we can be ordered to demolish it.