We have received numerous inquiries concerning people who have a property that was built some time ago without a license and even against the Town Hall’s urban planning (e.i. construction with more meters or floors that permitted) and the Town Hall refuses to grant the first or second occupancy license.
This is without doubt a case where some readers find themselves or either have a friend or family member that is in this situation, even entire zones in some Municipalities are under these circumstances.
However not all illegally built constructions have to end up with the demolition of the building or with no possibility of being used legally, simply because they failed to obtain a construction/building license or were/are not in line with the municipal planning.
As pointed out by the High Court of Justice of the Valencian Autonomous Community (TSJ C Valenciana) in its Court Order number 2055 of 15 September 2011 the first occupancy license is intended to show that the construction complies with the building permit and that the property meets the living conditions required by the legislation.
For those cases of constructions built without building permit where the Administration fails to act within the time frame allowed by Law (normally 4 years) to start a legalization and penalty process, that property built illegally and against the local planning, will become fuera de ordenacion (as per our previous articles), so the Town Hall cannot request its demolition or claim any sanctions.
The High Court of Justice of the Valencian Autonomous Community understands that in these cases, the Town Hall cannot simply prohibit the use of these builds if they did not act within the time limit provided by law nor did it start legalizing or sanction procedures in time, therefore the use of these builds shall be allowed taking into account the circumstances surrounding each case. This Court stated that in principle it is unreasonable to deny the first occupancy living licence for the mere fact of not having a building license.
There are numerous Court Orders indicating that the Town Halls cannot simply deprive the owners of a property fuera de ordenacion of using it, by not granting the first or second occupancy license, as this could mean an excessive punishment for the owners of properties in this situation.
It must not be forgotten that these properties will have a shorter life as according to the law, they are not allowed to be strengthened or restored, and in some occasions their use will be limited.
Thus we understand, said with the utmost respect, that some Town Halls utilize the request for first or second occupancy license, necessary to contract electricity and water, to review the legality of the finished construction works, or to demand from the owners to make some urbanization works i.e: built a pavement, etc., once the deadline for the Town Hall to review the legality of the building has already elapsed. We understand that this could be abusive as this is not the purpose of the first/second occupancy license.
Thus The Supreme Court of Spain (Division of Administrative-Contentious, Section 5) in Court Order of 3 April 2000 pointed out that it is not at the granting of the first occupancy license but at the granting of the construction license, where the Administration should conduct the effective monitoring of the works to make sure it is adequate to urban legality and reads: nor can ( the first occupancy license) be denied even when despite having erected a building without a license and against planning, the time allowed for the Administration to restore legality has expired and the property is located in an area where its intended use is authorized.
In summary: according to the above and taking into consideration that this could affect thousands of home owners unable to get their first or second occupancy license, we understand and so does the Supreme Court; that a Town Hall cannot refuse granting such license if the property meets the criteria for habitability and the intended use is permitted in the area where it is located, even if the property does not comply with the planning and/or it was built without a license, as long as the Administration did not take any action during the 4 years period allowed by Law, including those cases where the development of the area is not completely finished.
If you or any of your neighbours are in this situation then please do not hesitate to contact us in order to study your case, as we are aware there are large population centres in this situation.
The information provided in this article is not intended to be legal advice, but merely conveys general information related to legal issues.
White & Baos
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