CONVERSION OF PREMISES INTO RESIDENTIAL DWELLINGS IN SPAIN
The reality of many premises closing due to cessation of activity in Spain has led owners to convert them into residential dwellings, making the most of their premises, often without much of a commercial outlet.
This is a reality that is becoming more and more common, and to explain this phenomenon from a legal point of view, we are going to study the different budgets and legal requirements that make this solution possible, which we insist is optimal for owners who often find themselves without the possibility of introducing their premises into the real estate market.
Another option for owners of premises interested in making them profitable is to change them into tourist accommodation, as long as they comply with the requirements established by the Town Halls of each locality and which always affect ground floor flats.
By means of this article, we would like foreign citizens to know that in our country they can count on the help of our Spanish law firm of Carlos Baño León, experts in Real Estate law, who will advise them at all times on these issues and many others that may arise.
1.- TOWN HALL LICENSE IN SPAIN
An essential prerequisite for the conversion of premises into a dwelling is that the specific rules on change of use laid down in the General Urban Development Plan or Subsidiary Rules of the Town Council in question do not prohibit it.
It will be necessary for the premises to have the necessary living space to be considered habitable in accordance with the technical standards established by the Town Hall, and of course to meet the minimum requirements established for this purpose in the Technical Building Code.
It must be taken into account that not only a minimum number of meters is required, but also, for example, smoke extraction, ventilation, minimum facade, etc.
It is essential that whoever intends to apply for this change, must first hire the services of a technician to issue a feasibility report, because without this report it is impossible to know if the premises meet the standards to be converted into a dwelling.
The request for change of use must have the required license from the Town Hall of the locality where the premises are located, providing a report of the works to be carried out, indicating that the space to be used as a dwelling complies with all the requirements for habitability.
Faced with this request addressed to the technical services of the Town Hall, the Town Hall has a period of 2 months to resolve it, and it is important to understand that the silence to the request is positive.
Once this phase has been resolved, and with the explicit or implicit favorable resolution, the applicant must submit the application for the building permit, which will follow the procedures foreseen for this authorization, including the submission of the Basic and Execution Project. Subsequently, once the license has been obtained and the works have been completed, the applicant will present the declaration of First Occupancy.
Do not hesitate to consult with Spanish lawyer Carlos Baño León, who will clarify all your doubts.
2.- PERMISSIBILITY IN THE DEED OF NEW CONSTRUCTION IN SPAIN
We have already said that the only limits to the right of an owner to modify the use of his property, apart from the administrative limits, are given by the fact that the deed of Declaration of New Construction may contemplate the refusal to such change of use.
If this refusal is contemplated in the aforementioned deed, the consent of the Community of Owners will be necessary, but it must be made clear that this refusal must be explicitly stated.
3.- PERMISSIBILITY OF THE BYLAWS IN SPAIN
The same as we have said in relation to the deed of Declaration of New Construction, must be said about whether this refusal is explicitly included in the Articles of Association of the Community of Owners.
4.- REGISTRATION IN THE LAND REGISTRY IN SPAIN. PROHIBITION OF CHANGE OF USE.
- If the Community of Owners has prohibited the change of use, it will only be applicable to a third party if said prohibition is registered in the Land Registry.
- If the prohibition is found in the deed of Declaration of New Construction, it is clear that it will affect a third party, as the same will be registered in the Land Registry.
5.- APPROVAL OF THE COMMUNITY OF OWNERS
After what we have said so far, the Community of Owners does not have the power to prohibit the change of use except in the cases mentioned above.
Apart from this, it must be taken into account that there are two limitations that are applicable, and they are:
- The prohibition that the change of use implies an annoying, unhealthy, noxious, harmful, dangerous and illegal activity, and it is not allowed to make changes that may imply modification and alteration in the common elements of the building, for example the façade, as well as in the coefficients of participation for whose approval the unanimity of the Community will be required.
- In the case of a prohibited change, an agreement of 3/5 of the total number of owners, representing 3/5 of the participation coefficients, is required.
6.- PUBLIC DEED OF CHANGE OF USE AND PROPERTY REGISTRATION IN SPAIN
Once all the requirements have been met, you must go to the Notary Public to execute the notarial deed of change of use, which must be registered in the Land Registry.
Do not hesitate to contact Carlos Baño León’s lawyers in Spain so that they can review all the documentation of the property and advise you on the possibilities of the aforementioned change of urban use.
7.- CHANGE OF USE TO A TOURIST DWELLING IN SPAIN
What we have said in this article applies, to which we should add the requirements and formalities for obtaining authorization for use as a tourist flat.
Do not hesitate to contact Carlos Baño León’s lawyers in Spain to process a change to a tourist property.
FURTHER QUESTIONS RAISED IN THE CONVERSION OF PREMISES TO A DWELLING IN SPAIN
1.- If the deed of declaration of New Construction describes a use as a business or development of any activity, must I have permission from the Community for change of use?
The jurisprudence of our Supreme Court is clear and has established in numerous judgements that the prohibition must be explicit and not merely declarative.
The fact that certain uses are assigned to the premises is not incompatible with the owner’s right to change the use, and the consent of the Community of Owners is only required in the case of an explicit refusal to change the use.
According to case law, this recognition stems from the right to property, which has constitutional rank and cannot be limited, hence, in order for there to be a limitation, it will only be contemplated in the event that it is explicit.
2.- What majority is required from the Community of Owners for the authorization of the change of use?
- In cases where the consent of the Community of Owners is required for the change of use, the majority will be two thirds.
- If the change of use involves affecting a common element or modifying the participation quotas, the majority will be unanimous.
Lawyer in Alicante (Spain)
The Law Firm of Carlos Baño León has more than 43 years of experience in legal practice in Spain.
We work throughout the national territory and one of the areas of greatest work and experience is Real Estate law, so if you are interested in this subject or any other housing Real Estate, please do not hesitate to contact us.
