The threat reflected in the title is certainly not insignificant because the case we want to expose, which is more common than it seems, has its origin in the lack of knowledge, sometimes unjustifiable, that the citizen who wants to build a house has of the legal procedures that this implies in accordance with the urbanistic legality and of the consequence, which is committing urbanistic infractions that entail important sanctions.
The reason we write this article is due to a recent inquiry made to this Costa Blanca/Alicante law office by a Belgian citizen who a few months ago found out that the City Council had issued a resolution long time ago being him unaware of it. This resolution declared illegal some works made by him as a developer at that time to extend his home, penalizing him and requiring him to restore the urban situation of the house to the situation existing before the execution of the works.
Those works, which were detailed in the above-mentioned administrative resolution, were contrary to the land regulation, as it was explained in this resolution, so the owner was demanded to apply for a building permit and if he were denied this permit, then he would have to demolish the works.
Even though it may be misleading, this doesn’t mean that illegal works can be legalized, no, that can never happen and in fact, this what is indicated in the resolution of the Local Corporation we are talking about, but the owner is allowed to request it so that the City Council can resolve against him and thus the owner won’t be defenseless and, if he wants be able to appeal to the Courts.
It is clear that the consideration of the works as violating the urbanistic regulation makes it impossible for the citizen to obtain their legalization since the illegal urban works cannot be legalized. However it does allow the owner of the house to avoid that the City Council acts through de facto procedure by demolishing and then passing him all the costs.
This Costa Blanca/Alicante law office wishes to guide through this article all those interested persons so that they don’t make mistakes and if they do it, we want to help them with this article.
DEVELOPER (land´s private owner)
Legally, this is the person who is the owner of the building site that it is going to be built, regardless of the size and volume of the building site.
Not only can it be a professional who works as a construction developer to sell it to a third party but it can also be the small owner of a plot who orders the construction of a house to use it.
The figure of the developer in this particular case is defined in the Article 9, Law 38/1999, 5 November of the Construction Law as any person, natural or legal, public or private, who, individually or collectively, decides, promotes, programs and finances, with its own resources or those of others, the building works for himself.
When it comes to construction, the developer of a house has as his first obligation to apply for a Building permit from the City Council of the town where the plot is located.
The developer will be required, among many other things, the construction project of the house to be built, which will be revised by the Local Corporation technicians in order to verify that the construction meets the requirements of the Urban Law of the town with regard to volume and suitability for building.
For this reason, it is so crucial that before building the developer has that construction permit or, what is the same, the permit from the Local Authority to build that urban project in that specific plot.
But this construction permit is only for New Construction?
APPLICATION FOR MAJOR CONSTRUCTION LICENSE TO MODIFY A HOUSE
The license is not only required for the authorization of initial works but also for those that are modifications of other existing ones as long as these works suppose an extension of the construction, modification of use or if the structure and the facade are modified.
If we studied the works which, in this specific case, are reported by the City Council (house extension in 8m2; roofing slab change of the existing grill shed “paellero” in 10.5m2; modification in semi-basement floor of a bathroom slab surface; blank wall protection on the previous retaining wall; parking lot enclosure), we would be facing a clear case of license requirement for the aforementioned changes and it seems incredible, although we have sometimes seen it in our experience, as an example in this case, that technicians and building company can take part in this illegalities which initially represent for their customer a very high economic damage and irreversible negative effects.
From the wide experience of Carlos Baño León lawyers in Costa Blanca/Alicante, we must say that we have hardly ever seen a technician involved with this behavior, but we must say that many construction companies, especially small ones, took part in this action.
In other articles of our website we already advise how to act when facing a contract for the execution of works or a construction contract for alterations.
BREACHES OF THE SAID OBLIGATIONS, CONSEQUENCES
The penalties for urban planning infractions are so important that it would be worthwhile for those who wish to do construction works, whether it is initial or not, to seek the prior advice of a lawyer in Spain in order to avoid urban planning infractions that are sometimes of such magnitude that they can compromise the patrimony of the individual.
The first thing that the interested party should think about when building a house in Spain is that he legally possesses the condition of developer and that he is assigned a series of obligations by the Urban Planning Law, among which the most important is to have the pertinent licenses at the time of carrying out the works.
There are times when the interested party makes renovations and these renovation works sometimes require an authorization from the Local Corporation, as we have explained above.
This person has to resort to a builder, and sometimes to an expert, to undertake these construction works and sometimes it happens that more than one builder doesn’t present the reality to his client and doesn’t insist on the need to obtain authorizations.
As for the technicians, it is not common they dare to direct or supervise construction works knowing that it is not legal but it does happen sometimes. This has happened in the case that was brought to our attention.
With regard to reforms we are talking about builders who are not good professionals and who put their own interests before those of the client and make them ignorant of the serious breach of regulations that this can cause.
Sometimes, and I say sometimes, the builder only thinks of the benefit he is going to obtain from the work and, aware that he is not acting properly, agrees to carry out the work, sometimes convincing the client that there is no problem, which is not true; and other times it is the client who voluntarily assumes the risks of this behaviour even though the builder makes him aware of the risks he is taking.
Infringements of land planning regulations imply not only a financial penalty but also the obligation to restore the urban situation prior to the infraction.
[Article 236.3 of Law 5/2014, of 25 July, of the Valencian Government, Ordinance on Territorial Planning, Town Planning and Landscape “If the interested party does not apply for the license within two months, or if it is denied because it is contrary to the legal provisions of the planning regulations, the procedure will be in accordance with the provisions of the Law]
It is clear that this is the time to intervene with technicians as well as the possibility of trying to reach an agreement with the City Council, as least damaging as possible, but if this is not done, this procedure will decline and the resulting loss of rights for defence will be significant.
Many times we have seen clients who have spent a lot of money to demolish works done illegally, which means not only a great frustration but also a great economic loss.
[these will be penalised with a fine of the 25 to 50 per cent of the value of the construction works or facility /executed and the minimum fine will be of 600 euros, in accordance with the provisions of article 262 of Law 5/2014, of 25 July, of the Valencian Government, on Territorial Planning, Town Planning and Landscape].
If, apart from that, as in the case that has recently been mentioned, this house was for sale in a real estate agency, it will have the added problem that it cannot be sold until the land planning situation is restored.
In this particular case, and as it is established by Law, the City Council recorded in the Land Registry a statement of existence of a administrative disciplinary proceeding (or “sanctions proceedings”) on the property. So, evidently, any third party who goes to the Registry to see the legal situation of the dwelling will avoid its purchase
[Article 240 of the Law 5/2014, of 25 July, of the Valencian Government, that established that: “once the proceedings has been processed and that the proposed measure for the restoration of the urban planning that has been infringed has been formulated, it will be communicated to the Land Registry].
Therefore, and for the moment, this person cannot sell his property but if within the period of time given by the Local Corporation he doesn’t demolish the illegal works, then the City Council will do it at his own expense and without forgetting that until the works are done the owner won’t be able to have the water and electricity supplies because the companies will cease their service.
POSSIBLE ACTIONS THROUGH ADMINISTRATIVE PROCEDURES
Once an administrative file for the restoration of urban legality has been initiated, which occurs either through a neighbour’s complaint or because the City Council’s surveillance and control services detect it, the most important thing of all is to appear in the administrative file and take note of the actions that have been undertaken by the City Council.
The possible actions range from alleging prescription and, therefore, the consequence that the works cannot be demolished even if they are illegal; alleging formal defects to delay the administrative file as much as possible; intervening with a technician to verify with the Local Corporation if there are different solutions and not as radical as those that may be proposed by the acting Authority, etc.
After the termination of the administrative file, you will always have the chance to appeal through the legal contentious-administrative procedure, if it is considered that good results can be obtained.
But there are many times that the interested party has no knowledge of the opening of the administrative proceedings and this often leaves this party defenceless.
In the specific case we have mentioned, the intervention of the interested party must be to appear in the proceedings and to try to be notified of the resolutions again in order to be able to allege.
The owner developer will never have a good solution if he acts behind the back of the administrative file of the City Council because this will run its course and will have terrible consequences for him.
Many times clients are advised to demand liability to the builder and technician through the civil procedure and it is forgotten the most important thing which is the administrative file, and all this without prejudice to act against those who have been mentioned, but without ever setting aside the administrative file of the City Council given the very damaging consequences that can arise from not defending oneself or acting in it.
Besides, in this specific case, it is necessary that the builder and the technician get involved with the City Council and that they propose solutions accepting their responsibilities.
POSSIBLE ACTIONS THROUGH CIVIL LEGAL PROCEEDINGS
Apart from the main actions that we have indicated that should be carried out through administrative procedures, we should also consider the importance of legal actions through civil procedures against Construction Companies and Building Technicians who may have been involved in the construction of the aforementioned illegal works.
In principle it is understood that they should be obliged to appear in the administrative file to defend the client, or propose technical solutions that could prevent the demolition of the works. However, considering this attempt would be quite useless, but each case is different and it would have to be seen what influence could have these solutions.
Without prejudice to this, we recommend the exercise of the civil judicial action of claiming damages so that finally the damages that the individual may have are accepted by those who are really liable for the infractions due to their knowledge of the urban planning legislation and, therefore, taking direct responsibility for the damages that their conduct causes and, in this specific case, the damages of demolition and restoration of the urban planning legality, which will not be few.
What we do advise is that there should not be a legal claim against the Builder and Technicians of the Building Site, ignoring the administrative actions that, we insist, in the administrative sanctioning file are the most important and on which we would always focus, and therefore it is what we advise to do. In this way, those responsible should take responsibility jointly in order to provide a solution to the damaged private developer. And this solution can either come through administrative proceedings with the City Council, or through civil legal proceedings with a judicial resolution declaring their responsibility.
Carlos Baño Leon Lawyers in Alicante/Costa Blanca is a law office specialist on Property Law and Urban Planning and Construction Law in Spain and we put at your disposal more than 37 years of experience in Courts and Tribunals and advising many clients that have invested in Spain. So don’t hesitate to consult us.