IS LEGAL THAT A TOWN HALL REFUSES TO GIVE CERTIFICATE OF HABITATION (CH) IN RUSTIC LAND AND URBAN PROPERTIES?-
HIGH COURTS IN VALENCIA FORCES TOWN HALL TO GIVE CH IN RUSTIC LAND PROPERTY WITHOUT PROPER BUILDING LICENSE.
There are thousands of properties in rustic and urban land in the Spanish market without CH.
The majority of them have being paying Council Tax, water and electric, the government and Town Hall has collected from the owners the taxes when they bought, and their personal taxes while they own the property (Income Tax and Wealth Tax), and the taxes when they sale (Capital Gains), water, electric, etc.
But, when the owners of these properties apply for the CH, then some Town Halls refuse to issue it.
Is this fair?
There are 2 different positions from the Town Hall in respect of CH:
– Those who gives the CH, always that there is not any construction fine affecting the property (or is now expired). This is the position of Town Hall like:
Elche – Alicante
Dolores – Alicante
San Fulgencio – Alicante
Hondon Nieves – Alicante
Hondon Frailes – Alicante
La Romana – Alicante
Callosa Segura – Alicante
Albatera – Alicante (till May 2011)
Ricote, Blanca, Cieza, Abarán, Abanilla, Fortuna – Murcia
Source: TLACORP database 2012
– Those which, despite of there are not any construction fines affecting the property, or, if there is any, is already expired, do not give the CH.
Crevillente – Alicante
San Vicente – Alicante
Aspe – Alicante
Andalucian Region, including all the areas like Malaga, Granada, Almería, etc.
Source: TLACORP database 2012
Regulation is confused in the market, and does not help too much. There is not an unique law regulator for all the country in construction. Each region has exclusivity of regulation for construction in their territories. They have to fulfill with the central government criteria, but the regions have too wide faculties to develop the Madrid-central laws.
Urbanistic and construction laws in Spain result in a very complicate net of laws, with different sources of legislations, starting from the Central from Madrid, passing by the different Regions (Comunidades Autonomas), and arrving to a wide range of interpretations by the ones which must execute the laws: The local Town Halls.
Mainly, there are construction laws which, coming from Madrid, leave a basic structure of consideration in construction which must be developed by each region. The most important is the Ley del Suelo from 2008. The problem of this law is that it leaves the different regions a “wide range” of development for the own regionsal laws created to regulated the construction sector in their scope of influence.
As result, a determinate construction can be considered totally different from one region to another, depending in which territory is developed.
This must be joined to the fact that the Town Halls of the local areas have also functions of development and interpretation of the laws. As result, it leaves, cities, bordering one each other, where a determinate construction can be considered totally different from one to the other. This leaves the country in a really problematic picture of mixing, confusion, and insecurity regarding transactions in rustic.
So, at this moment, the interpretation of the Tribunals, and their jurisprudence (Cases of Law), are compulsories to give clarifications in this matter.
HIGH COURTS IN VALENCIA (Tribunal Superior de Justicia) and SUPERIOR COURTS IN MADRID (Tribunal Supremo) has given the reason to the owners.
Supreme Court in Madrid decisions have been giving the reason to those owners who were applying for CH for these type of houses, always that there was not any construction fine affecting the property (or they were expired), and the property was considered suitable for habitation.
But, as explained, each Comunidad has their own competences and faculties to regulate construction in their territories. So, in Valencia region, we were waiting for a definitive Sentence of the Valencian Tribunals to confirm the suitability from properties without building license to obtain CH, without valid or expired fines for construction.
This sentence arrived on October 2010, and confirmed the following:
The case: A villa built without building license. When declared in the land registry, the owners considered the finalization of building works with more than 5 years, and with a certification from an architect confirming the building fulfilled the all the habitation requirements.
The Town Hall from Xabia denies the CH when applied, arguing there was no building license applied.
The owners said building is older of 5 years, and any actions against it (like fines, demolition, etc.), are not possible, since the term of time to do it is now expired.
The Town Hall insists in their position to refuse to give the CH.
The owners claimed against the THall in first instance, and they lost.
They appealed to the High Courts in Valencia, and they WON.
The High Courts, by the Sentence TSJ de Valencia Sala de lo Contencioso-Administrativo, sec. 1ª, S 30-6-2010, nº 834/2010, rec. 1529/2008, says:
– That building is illegal, because there is not any building license to cover it.
– The Town Hall had 4-5 years to detect the illegal building and to fine for it, with the proper order of demolition.
– Town Hall did not make anything during that time.
– Any eventual fine neither order of demolition is now expired
– Property fulfills with habitation requirements as confirmed by independent architect
– Property needs CH to connect to mains supply of water
– Town Hall had the legal period of 4-5 years to demolish and fine the property. They left this time and did nothing, so, is unfair the TH keeps the property without CH as a punishment.
So, High Court of Valencia sentenced in favor of the owner, and forced the Town Hall from Xabia to give the CH to the owner.
Consequences of this Sentence: How important is this sentence in the Valencian Region?.
As we say, there are some local Town Hall in the area which give CH to those properties built so long time ago that, for this reason, any legal action against them is expired.
In instance, there are other local Councils which do not distinguish between properties with a pending fine, or order of demolition, and others with any of these actions expired and legalized with the time, and deny the CH as general rule.
This Sentence opens the way to Valencian Lawyers and Solicitors to fight against the local Town Halls, and to obtain CH in those properties that:
Are built without a valid building license
Were built with 4-5 years before any action/inspection from the Town Hall
Have not any fines, neither orders of demolition valid (all of them are expired)
Fulfill with habitation requirements
Although this sentence is not a general rule, and cannot be used as a “Case of Law”, it could be the beginning of a change of consideration in the Spanish system to protect the ownership and those victims of the confused Spanish system.
NOTE: This report is written in a very personal interpretation of the laws made by the company TLACORP lawyers.
As serious legal expert professionals, we summit our conclusions to other interpretations and proffesionals, which could be prevalent to our legal criteria, if better founded in law. So, this report is written in strict terms of information to those , clients, or not, readers and followers of our site, and without any legal effect without the proper individualized study of the case.