This article looks at the latest update relating to the regularization of illegal properties in Andalucía
The real estate boom together with the increasing price of a property in the years prior to the recession in coastal areas in Andalucía, gave rise to a high demand of properties in the countryside.
A lot of them were built illegally and prices were considerably lower than on the Coast.
There are various reasons why so many properties were built illegally, the main one being the restrictive rules to build on rural land.
This in turn created a black market where all kinds of tricks, including corruption, happened in order to build the illegal properties.
The former Law on Land Use in Andalucía (LOUA) demanded to build a property in the countryside; the owner had to justify the need of the property for agricultural, forestry, or livestock production purposes.
This was impossible to prove for a standard property built on a small country plot, as you would need a lot of land to prove it was for agriculture use.
Hence, the large growth of illegal properties, if you want to know more about the reasons for this you can read our article Illegal Constructions in the Andalusian Countryside
The different changes in the LOUA had proved useless over time as there had been very little willingness from the former Andalusian government to tackle the situation.
This resulted in approximately 300.000 illegal properties out of the 500.000 properties in the Andalusian countryside. Of which only 26% have been granted the AFO or Assimilated to Out of Order planning status.
The situation has now changed with the passing of the New Law On Land Use in Andalucía known as LISTA (Ley de Impulso para la Sostenibilidad del Territorio de Andalucía) in force since the 21st December, 2021. The LISTA and its developing Regulation (REGLAMENTO DE LA LISTA), the latter in force since the 5th of January, 2023, allows the building of a residential dwelling in the country side. For this you can read our article Building Residential Propety in the Andalusian Countryside
So what happened with the illegal properties built before, how can owners try to regularize them.
Basically, although the AFO does not legalize the property, it gives the recognition that the property meets the necessary health and safety conditions to serve as a dwelling.
This allows the owner to legally contract the services and supplies (water and electricity).
It also allows the owner to carry out basic maintenance works on the property.
Which properties can be granted an AFO?
The aim of the new law is to try and regulate the status of illegal properties built in either the countryside or in the town when the statute of limitations for the authorities to protect or restore the planning order has elapsed, i.e., six years since the finalization of the construction.
Any of these properties fall within the category of AFO properties. However, a resolution from the Local Council needs to be obtained granting the AFO status to access the services and supplies.
If the property is not granted the AFO the property cannot contract the services and supplies to the property, nor can conservation work be carried out on the property.
Which properties cannot be granted the AFO?
Illegal properties built when the six-year statute of limitations has not elapsed since completion of the construction.
Those properties built in green land or which is zoned as a public land.
Illegal Construction works in especially protected areas also benefit now under the LISTA of the six-year statute of limitation for the authorities to exercise the necessary measures to reestablish the violated planning legal order.
Who can apply for an AFO?
Either the owner of the property or the Local Council by statute.
What needs to be proved to obtain the AFO?
Identification of the property with registration particulars, rates reference, plan of location, date of finalisation of the construction which can be proved by any valid means.
Also, verification that the property meets with the necessary health and safety conditions to serve as a dwelling duly certified by a competent Technician.
Upon review of the documentation lodged and the reports from the relevant bodies of the Administration which it affects, the Local Council will make a decision.
The reports can include whether the property has been subject to proceedings aimed to protect or restore the planning order.
Can the Local Council demand certain works prior to granting the AFO?
Yes, these could be required to guarantee the minimum health and safety condition for the property to be used as a dwelling or those works to minimize the visual impact within the landscape.
These works will have to be carried out under the supervision of a competent technician, such as an architect or engineer.
These people must issue a certificate confirming the completion of the required works and these must be approved by the Local Council technicians.
What is the content of the AFO resolution?
The AFO will declare that in respect of the illegal property, the statute of limitation to protect or restore the planning order is over.
This means that neither protection or restoration proceedings, such as the demolition of the property, nor fine proceedings can be addressed against the property.
The recognition that the property counts with the necessary health and safety conditions to serve as a dwelling.
That the property can now contract to the services and supplies (water and electric).
Also, there will be reference to the possible criminal proceedings which may affect the property.
What are the consequences of the AFO being denied?
The property can neither contract the services and supplies, nor any construction work be carried out on the property.
What is the time for the Local Council to resolve the application?
Six months – If there has been no express resolution within such time scale, the application has to be considered rejected and therefore the same can be applied to the subject of appeal by the owner.
Are there new fines foreseen in the law?
The law foresees fines for any property subject to illegal division of land if advertised in the internet. The construction of electricity and water connections without authorization or the issue of Certificate stating how old a building is with false information issued by a technician.
Will a property with an AFO be considered as illegal forever?
The properties with AFO may be incorporated as legal properties in the future Town plans providing this considers that they are compatible with the principles and definitions of the new town plan and the corresponding planning charges and obligations have been satisfied.
What happens with properties with an order from the authorities to restore the planning order which is impossible to be carried out?
Those properties will also be considered for an AFO providing the corresponding economical compensation has been paid to the Local Council.
What happens with properties illegally built where building licenses have been declared null and void?
These properties can also be considered for an AFO providing six years have elapsed since the completion of the construction.
However, these will be subject to the decisions of the Court when executing the corresponding judgment.
This means if the Court upholds the demolition of the property, this will be carried out.
In summary, the new legislation recognises the AFO status to any illegally built property on which the statute of limitation for the authorities to protect or restore the planning order has elapsed, i.e. six years since completion.
Even for those properties where the building consent has been declared null and void.
However, to be able to contract the services and supplies to the property and to carry out maintenance works on the property an application has to be lodged to the Local Council and has to have an AFO approved and issued.
Rafael Berdaguer Barbadillo
Abogado
rberdaguer@berdaguerabogados.com
Please note the information provided in this article is of general interest only and is not to be construed or intended as substitute for professional legal advice. This article may be posted freely in websites or other social media so long as the author is duly credited. Plagiarizing, whether in whole or in part, this article without crediting the author may result in criminal prosecution.
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