DEED FOR NEW BUILDING CONSTRUCTION WORKS AND EXTENSIONS New requirements for inscriptions of Deeds at the Land Registry. Novelties about the Deeds granted for constructions works without building license.

When selling or purchasing a property in Spain, it is quite common for either the bank or the purchaser, to demand that the property be recorded in the corresponding Land Registry as it is at the time of selling or purchasing, which means, updating the registry description to make it match the property’s current physical situation. This is done by means of a Deed in front of a Public Notary called Deed for New Building Works and/or Extension.

Until very recently, in order to be able to register a new construction work without building license o without legal urban planning permission, it was sufficient to demonstrate that the construction was over 4 years old and thus the time for the administration to be able to open a proceedings against it had prescribed. Also needed was a certificate from the architect holding the physical description of the property and that the property did not have a record from the authorities for any urban disciplinary or penalty proceeding.

This meant that many people who bought a property, without a proper legal guidance, could wrongly understand that purchasing a property dully registered in the Land Registry meant that the property was totally legal and without problems.

Unfortunately, this is far from being true, as it is one thing that the property is registered in the Land Registry, and another totally different is, the urban legality of the property; that is; if the property complies with the Municipality’s General Plan, if it has the administrative authorization required to be used as dwelling (Habitation Certificate/ First Occupancy License), etc.

Therefore a property registered in the Land Registry, may perfectly go against the law, could have been built without a building license and without complying with planning regulations and not have habitable conditions, etc.

With the recent approval of the Royal-Decree Law 8 / 2011, of 1 of July a new amendment has been made to the Land Law (Ley del Suelo) demanding from Notaries and Land Registers new requirements and substantial test in order to be able to authorize the registration of New Construction Works. This new measure intends to give a little more security to the buyers.

In this respect, we should also highlight the fact that even for those completed construction works built with a building license, the Notary will demand, from now on, the necessary authorization granted by the public administration offices involved, to ensure that the building qualifies for the intended use under the requirements for urban planning.
That is; among others, the Notary will now require the First Occupancy License which was not mandatory before.

In the case of construction works built without a license and against whom no proceedings can be started to restore urban legality that could imply demolition since the statuary demolition limitation period has past, (normally 4 years provided they are not occupying public land), new requirements have been added, the most notable are the following:

.-. It must be demonstrated that the construction is not built on public land nor affecting any general public easement.
.-. It must be confirmed, by administrative action, which will be a Town Hall report/certificate, which part of the construction is beyond management (FUERA DE ORDENACIÓN, due to not complying with the planning regulations. This information will be reflected in the registry records.

For all the above, we kindly remind our readers that the fact that a property is registered in the Land Registry and signed up in catastro, does not mean that it is in perfect legal urban conditions or appropriate for dwelling, habitation, etc.

We would also like to inform those property owners whose properties are not correctly describe in the Land Registry; that the process for granting and registering Deeds for New Building and Extensions Works, have become more complex. Thus, if the construction is too old to be demolished but it is not in agreement with the urban regulations, then, it needs to be stated on the deed, which share of the construction is beyond management and this information will appear in the Land Registry record.

Should any reader find himself or herself in this situation or similar please do not hesitate to contact us and the appropriate advice will be provided.

The information provided in this article is not intended to be legal advice, but merely conveys general information related to legal issues.

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