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Legalizations and Common Problems

Do I need a Building license to reform my house?

Yes, you need a building license to refom your house. The type of license required for these works depends on the works to be done with the reform.

Minor Works License – “licencia de obra menor”: This is required to changes of use of the rooms, and distrubution of walls, etc. To obtain this license it is not necessary a project form an architect, because it can be applied by particulars, just explaining the works, and evaluating them to pay the taxes.

To a better comprehension, this license is applied when the works to be done int he property does not affect to the essential infrastructure of the property, like the change of the roof, the supporting bimes or strcuture of the building, or inside stairs.

Normal cases in which this license is needed:Reform of the roof (not to change it completely, just to renew it). Here are some cases to apply for this license:

  • To build garage, shed, or warehouse
  • To build a fence
  • To build a pool (depending on the area)
  • To build a corral, etc.

Please, note the cases described and the conditions to get the license can vary from a zone or region to another substatially

Major Works License – “licencia de obra mayor”: This is the same license as requested to build a house, explained in the section of “Construction in rustic land”, and “Construction in urban land”. This permit is required when the works to be done in the constructions affect to the essntial parts of the building, and requires a Project of an Architect. For example, to build an extension of the house (like a new room), or to change the roof.

  • To change completely the roof
  • To build a new room extending the construction
  • To build a garage with tiles and concrete
  • To build a second floor
  • To build a pool (depending on the areas and regions), etc.

There is not title deed or escritura for the land, or the extension or boundaries of the land are not correct.

We can find often that there is not escritura (title deeds) for some properties, and you need to establish your right to the property through a process known as “expediente de dominio” or “acta de notoriedad”. This is complex, involving publication of your claim in the Boletín Oficial de la Provincia (the Official Gazette). The difference between both process are, mainly, that the “expediente de dominio”is made in a normal process in the Tribunals, and the “acta de notoriedad”is a process made in front of the notary of the area. It is not necessary to say that the“acta de notoriedad” is always more recommendable because is a shorter, cheaper, and faster process than the other one. Usually, “expediente de dominio” is used when the situation of the land, and the ownership is in dispute with the neighbors, or is not clear. And the “acta de notoriedad”is used when the ownership is well known, and there are problems of boundaries or size of the property.

Then you need to ensure that the records of the Registro de la Propiedad and the Catastro agree, and that these are in accordance with what local custom holds to be the property boundaries. You are only allowed to build on a certain percentage of the land area. You need to check for availability of utilities – especially water and electricity. You need to check for servidumbres de paso (rights of way) as these cannot be blocked. Then having “created” your property, it is necessary to register it for the first time. For all these matters you need the services of your Spanish Solicitor.

It is also frequently that the size of the land is not the same as the real plot. In these cases, again, an “expediente de dominio” or “acta de notoriedad” must be made in order to confirm which are the real boundaries of the land, and to update both, Spanish catastro and Spanish land registry

The land is duly registered but the existing house does not appear in the deeds:

Sometimes happens that the house (construction) itself may not be registered, either for historical reasons or because whoever built it wanted to avoid tax and expenses for registration. Generally in such cases all that appears in the land registry and the offiicial paperwork is the land.

In some other cases, the construction is registered (appear in the deeds and in the land registry), but not as a “house”, maybe as storehouse, or shed (“albergue”, or “almacén”) or some other similar construction. This is not sufficient to have the construction legally declared as a “house”. This situation should have been highlighted in the pre-contract stage, as it must be clear from the nota simple.

In this cases, before you buy the property, your Spanish Solicitor – or the vendor – must to register the house for the first time, if it not registered yet, or as a “house2, if it was registered but as any other similar constructions (shed, storehouse, etc). This is done by what is called a “declaración de obra nueva” (declaration of new works). And this must be done even though if the house is there for hundreds of years, because, as per the Register is concerned, this is a first registration, or at least the first registration as a house.

The “declaración de obra nueva” (DON) is a process of inscription of a building or construction in the land registry. The process is very similar as when the house is new, the differences are the documents required, and it is reduced to the elaboration of a deed from the Spanish notary, in which the new building is declared with the proper description of the rooms, service, size and measurements, plans, etc.

If the house was recently built (usually less than 4-8 years, depending on the area), the documents are exactly the same as considered as if the house is new, which are the following:

  • The deeds of the land on your name- To proof the ownership of the land.
  • The Building Project from your architect – To proof the size, description, etc., from the house and the building.
  • The Building License – To proof that the property obtained the proper permission from the Spanish authorities.
  • Final Works License – (CFO) Licencia o Certificado Final de Obra – To proof that the Works in the Spanish property are finished.
  • Ten Years Insurance (Seguro Decenal) – If you have finally chosen to contract this insurance. If not, you must indicate to the notary that you have not proceed in this way, in order to inform the buyers and obtain the confirmation that they agree.
  • Certificate of Habitation from the Town Hall – To proof that the Spanish authorities considers the building as a Spanish “House”.

But, if the house is not new, is an old house (more than 4-8 years, depending on the area), then the documents required are different. In this case, as the Spanish house is old, it will be necessary to proof how old is it. For this, there are several systems:

Certification of age made by an architect or engineer or “Certificado de Antigüedad”: If the house is not declared in the land registry, nor in the rest of official registries like the Spanish Catastro, somebody must confirm to these institutions how old is the construction, and which is its size, and description (how many square meters, how many floors, how big is, etc.). For this, in some areas of Spain, it is required the property to be inspected by an specialist who will confirm approximately the age of the building with a personal survey made in the property to check the estate of the house, and considering the rest of evidences like registries and records at the Town Hall, and other public or private database.

Although it is not applied for the Spanish laws in order to make the DON, the certification of the architect should be accompanied by the drawings or plans for the house, in order to proof the measurements. The plans will be very useful in the future to declare the house in other registries like the Catastro, or the Town Hall.

Some people confound this certification with a “survey”, or with the “evaluation” made from the bank in order to approve an eventual mortgage. As you can see in this report, the certification of age from the architect (sometimes engineers) is to measure the house, to detail the description, and also to provide an approximate age of the property. This certificate, is very specific, and it is used expressly to declare the Spanish construction in the land registry with the Declaración de Obra Nueva process.

A “survey” is made by professionals, who can be architects or not, who just indicate the situation of the house, and the estate of the construction to detect defects in the construction, and it is used, mainly, in the process of purchase or acquisition of a property. In fact, this is something which is not used when buyers and sellers are Spanish, but, it is widely used in Spain when the buyer is form other nationalities, like British.

And, finally, the “evaluation” made by the mortgage bank is different from the “survey” and from the “certification of age” because it is made by professionals, usually not architects, just to “evaluate” the property. It means, that the bank, as the creditor of the loan, wants to know how much value it has before to provide the funds of the loan, mainly to check if the property will be enough guaranty to cover the risk and the funds borrowed.

Certification of age from the Town Hall.”Certificado de Antigüedad del Ayuntamiento”. This is a certification issued by the Town Hall. This certification is not so detailed in the description of the construction as the one made from the architect, but, it serves to confirm to the Spanish land registry, and to the notary, what is the exact, or approximately, age of the construction.

Certification from the Catastro. “Certificado Catastral o del Catastro”. In some areas, the Catastro has a detailed database from the properties, construction, and land of the rustic zones. In such a way that, although the land registry cannot be informed about the current existence of the property, the Catastro, due to its “automatic” or “inspection” activity (the Land Registry only act when the interested parts inform about a determinate transaction, it never act by his own inspecting, or acting automatically), has detected previously the existence of the house, and can confirm the age with more or less exactitude. In these cases, and depending on the areas, notaries and land registries accept the certification from the Catastro as proof of the existence and age of the property in the process of DON.

In both cases, I mean, in the case of a relative new, or old house, the documents required are provided to the notary, who will prepare the proper deeds which be called Declaración de Obra Nueva, which must be signed by the owner of the land. Once the deeds are properly signed, these ones will be the current deeds of the property, and the previous ones, which contained just the land, will be cancelled.

Then, once you have all these documents, you need to bring them to the notary. The notary will prepare the title deeds of the construction, and you will sign them. This process is called Declaración de Obra Nueva. This will declare that, over the pre-existing plot, there is now a construction, which is a house.

Then, you will need to bring these documents to the Land Registry to make the proper modification of the inscription of the land, now including the house, and the house will be legally complete.

So, the expenses of the DON will be, mainly:

  • Notary fees to prepare the DON deeds
  • Land Registry fees to inscribe the DON in the inscription of the land
  • Stamp Duty – 1,2 % of the evaluation of the property

In these cases, it is highly recommendable to you to negotiate with the vendors that they register the house with the proper DON before proceeding with the sale. In fact, if you are getting a mortgage, the bank will not be able to value the property until the house has been registered using the DON, because until then (1) it does legally exist; and (2) until it is registered there is no official designation of what the property is exactly (size, land area and boundaries etc.). Also it cannot complete a mortgage on property that is not registered. So in this case there is no choice: the vendors must register it before you can buy it.

The land is perfectly registered in the deeds, and the house appears, but its full extension is not declared , or there are other elements not declared in the deeds like garage, or pool, or storehouses, etc.

These cases are really common in rustic land. These are the typical cases in which, in a determinate time, somebody inscribed and declared the land, and even also the house, but they did not include other parts of the house, or other elements, because they were built after.

For example, the owner who, after buy the house, builds a pool, or a garage, or extends the house with a new room, or a new porch, or a new floor, or terrace, etc.

These cases are extremely problematic, because the process to declare and update the deeds with the new extension requires an specific study of the matter.

There are so many different probabilities and requirements, depending o WHAT is the size of the land; WHERE is the property located (Valencia, Almería, Alicante, Murcia, Castellón, Granada, Cádiz, Málaga, etc.), with extremely high differences between regions, and even between cities; WHEN these extensions were made (4 years before, 10 years, 20 years), and HOW they were built (without building license, with reform license, etc..), that it is absolutely impossible to give a valid overview over this matter which could serve to affected owners as guide.

In these cases, please be free to consult us, and we will drive you to the proper solution in particular.

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