Legal report

Information and questions about the Law in Spain and Andalucia.
Lucky Luke
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Legal report

Postby Lucky Luke » Fri Jun 28, 2019 7:31 pm

We'd like to buy a small villa near Coín. We reserved it and had a sollicitor investigate the property. The conclusion of their legal report is as follows:

"We don’t see in this stage any legal problem against the house, but the constructions built after 2009 (pool + smaal porch) can’t not be legalise and these could be a problem in the future. We have to take into account that the land registry will notify to the Town Hall of Coín the new registration deed of the pool and your purchase title deed, this could mean the beginning of the DAFO process and the infraction procedure for the construction built after 2009. It’s not usual to be involved in this infraction precede but there is a risk for the buildings built after 2009."

This is our dreamhouse. But, we don't want it to turn into a nightmare. And we would want to avoid to live under the threat of having to tear down parts of the property. What are you thoughts on this issue? In your opinion, how high is the risk that we'll be forced to demolish the pool and the little porch (it is 2x2 meters to provide some shade at the front door)? How high would the penalty be? Should we walk away? Or accept that this is a fact of life in the campo in Spain that we have to accept and don't be bothered with it too much? And in the event we're condemned to tear it down, what happens if we don't?
Any input is welcome. I'm new to this forum, so if this issue should be posted somewhere else, please let me know. Many thanks,
Luc

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Re: Legal report

Postby Beachcomber » Fri Jun 28, 2019 8:21 pm

Your post is fine where it is.

The lawyer's report states "We don’t see in this stage any legal problem against the house..." For this to be so (unless he is merely referring to the fact that no legal proceedings have yet been started by the town hall) it would be necessary that the original property was built prior to 2002, on at least ten thousand square meters of unprotected land with a building licence, and has a licence of first occupation. Does it comply with all of these requirements?

Normally an AFO can be applied for once the section of the property for which it is applied is more than six years old. If the main building does not comply with the requirements which I stated above an AFO would be needed for the whole property at some considerable expense.

Bear in mind that an AFO does not legalise a property it just regularises its situation. There is no requirement for there to be an AFO in respect of the property for it to be sold but if you bought it under those conditions you would find it virtually impossible to sell it in the future unless the law is drastically changed in the meantime.

If one were to insist that every little detail be 100% correct no-one would ever buy any property in Spain so there has to be a little give and take but all of the circumstances must be taken into account and one overriding factor is that if the property is built on protected land it is totally illegal and an AFO would never be granted under any circumstances

Are there other properties very close by? Are you sure that it is not built on pro-indiviso land? In order to give a more comprehensive answer much more information and a study of the documentation would be necessary but the fact that you feel the need to check your lawyer's statement on a forum such as this would indicate that you are not happy with the situation. (Neither would I be to put it mildly).

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Re: Legal report

Postby Unicorn » Fri Jun 28, 2019 9:12 pm

Anecdotally all you ever hear is problems occurring with situations like this. Lawyers here, apparently, take very little responsibility and town halls can change like the wind if the politics/policies/mayor change.
Would it be possible for you to get the sellers to legalise it as a condition of sale? That is what I would do.
IT may be your dream property but there is always another one. There are reams of sorry tales resulting from situations like this.
Maybe the sellers are cousins of he mayor and they have not just bothered. As foreigners, which I assume you are, you could be buying a real nightmare.
Beach has given you a great answer, and I suspect the clue is in the last line....

You are lucky Luke for the moment, don't find you have to put an 'Un' in front of that! :wave: :wave: :wave:

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Re: Legal report

Postby Pamela1 » Fri Jun 28, 2019 9:55 pm

It seems to get more and more complicated with property in Spain..there is always something new causing people to have to jump through one hurdle after another..If many properties as some say just can't be sold then the Spanish government are losing out on the tax they charge and no doubt there will be more and more abandoned homes going to rack and ruin...

If an AFO is needed to regularise a property then what happened to the Cadastral amnesty where thousands of homes with extra rooms/porches/ pools ets were either regularised voluntarily to avoid the fine which was reduced under the amnesty from around 6,000 euros to 60euros ...for those who didn't bother they were fined 60 euros and their properties were regularised ...still illegal but regularised nevertheless...Most, if not all of Spain was covered and Andalucia had the most irregularities..The amnesty i believe which started in 2013 took 3-4 yrs to complete and as far as i know all the properties which were scrutinised mainly by ariel photo's have not had demolition orders...I guess otherwise they would have had to knock down half of Andalucia.... :lol:

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Re: Legal report

Postby dxf » Fri Jun 28, 2019 10:38 pm

Hola

As has been said, if the constructions are over six years old AND there are no ongoing actions against the property, then the building will be allowed to stand "as is". The advantage of an "AFO" (asimilacion fuera de ordanacion) is it gives you the right to the normal services if they are close by.

The new Junta de Andalucia has declared its intention to regularise all illegal housing in Andalucia but has said that houses built on flood plains for example "will be a challenge".

If the house is your dream home and you will sleep well of a night, then without any outstanding actions against it, I would say that you should buy it. Houses in my area are being bought and sold every day - in the full knowledge that there may come a time when urbanisation may rear its ugly head and money may have to be paid to be connected to services.

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Re: Legal report

Postby Beachcomber » Sat Jun 29, 2019 10:17 am

Catastro is a department of the Agencia Tributaria and the amnesty was just a revenue raising excercise on their part. It had no connection whatsoever with the legal status of the property and certainly did not legalise or regularise it.

The property boom began on the coast in the late 1980s just after Spain joined the European Union and became a net beneficiary of EU funds with no check on how they were being spent. It continued into the 1990s spreading inland later in the decade and the country was awash with so much money that enforcing building regulations was way down on the list of priorities.

The Junta de Andalucía overreacted by banning virtually all building on rustic land in 2002 therefore anything built since then is illegal although this hasn't prevented thousands of illegal properties from being built. As far as demolishing these properties is concerned, it is estimated that there are around three hundred thousand of them in Andalucía alone so even if they demolished ten illegal properties every single day of the year it would take over eighty years to get through all of them most of which will have fallen down of their own accord by then anyway.

Just as in centuries past when the loot from plundered South American countries (particularly the Incas in the sixteenth century) was relentlessly squandered so to were the EU handouts. The money that was left over from what was stashed away in private bank accounts was squandered on projects such as the Castellon and Ciudad Real airports and, just as in the past, the money ran out and the authorities, in order to keep themselves in the style to which they had become accustomed, then started looking at means of raising funds from the hundreds of thousands of illegal properties that they had allowed to be built, hence the Catastro 'amnesty' and the useless and ineffective but very expensive AFO.

I could go on for ever but the one piece of advice that every prospective purchaser should be given is 'Do not buy a property in Spain unless you can afford to lose all of your money and are able to maintain a property in your home country', but don't let me put you off!

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Re: Legal report

Postby Devils Advocate » Sat Jun 29, 2019 11:43 am

And yet what baffles me about all of this is there are still new builds going up in our area as the cement lorries start moving again.

Not hide away shacks but big and lovely looking villas, one has recently sold which was built last year and 2 are on the market at big money via the estate agents and Rightmove. As I say these are not hiding away, they are on main road positions visible to all throughout the build. There are many more too. So how does this happen? Surely someone is sanctioning them? They are selling too so I'd imagine the paperwork satisfies buyers to a point. Me and the OH can't fathom it.
Property owner in Andalucia since 2002. How time flies.

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Re: Legal report

Postby Beachcomber » Sat Jun 29, 2019 12:31 pm

Exactly. There was a little shack just down the lane from us which has just been made into what can only be described as a monstrosity of a monument to bad taste of about five times the size of the original.

The local police and Guardia Civil pass by on a regular basis without even a second glance and its next door neighbour is a councillor in the town hall.

Money and influence obviously still rule in Spain as it did a few years ago when developers, architects, lawyers, estate agents, and town hall officials all colluded to hoodwink unsuspecting foreigners into purchasing illegally built properties. Particular areas affected are the Axarquía and the Almanzora Valley near Albox in Almería.

I am aware that all this has strayed somewhat from the OP's original question but it is important to be aware of the overall situation as well as their own particular circumstances which I tried to address in my first reply.

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Re: Legal report

Postby El Cid » Sat Jun 29, 2019 5:20 pm

Yes there are some new builds but how can you say that they are on rustic land and therefore illegal? Unless you check with the local planning departments about what areas are and are not rustic, it is difficult to point the finger at them as illegal builds?

The designation of what is urban and what is not can change within the town plan depending on who just paid for the mayors new Mercedes!

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Re: Legal report

Postby Beachcomber » Sat Jun 29, 2019 5:43 pm

Speaking for myself I know In my own area what is urban and what is rural and, if one digs deeply enough, this kind of information can be found in the PGOU section of many town hall web sites.

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Re: Legal report

Postby Lucky Luke » Sun Jun 30, 2019 2:36 pm

Thanks for sharing your thoughts! As requested, here's a little more info: the house was build in 2004-2005. The land became special protected area in 2009. So I think the house is safe. The pool and a small porch were added around 2011-20012. The pool is not a concrete, digged-in pool. It's a polyester pool that was put on the surface. The previous owners did a great job integrating it by making a wooden terrace around it. They've signed a new building declaration for the pool a couple of weeks ago and are still waiting the registration from the local land registry. My concern is that we might be forced to remove the pool and the little porch if the registration is denied. What are the chances that this will happen? And what happens if we refuse to do it?
Thanks again! Sharing your experiences and thoughts with us means a lot. We've put our house for sale and have a serious candidate. So, we'll need to make a decision in the next couple of days...
Lucky Luke

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Re: Legal report

Postby Wicksey » Mon Jul 01, 2019 1:33 pm

I have a poliester above-ground pool and to my knowledge I do not need permission for it. (I did get permission for the concrete base when I applied for our gateposts but not the pool that sits on it as it can be removed and put onto the back of a lorry, the same way it arrived).

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Re: Legal report

Postby Lucky Luke » Tue Jul 02, 2019 3:46 pm

Interesting! Is your plot also in 'protected area'?

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Re: Legal report

Postby El Cid » Tue Jul 02, 2019 4:16 pm

As Beachcomber said, if it is not on urban land and built after 2002 it is most likely illegal. You need to check that it had a building licence and Escritura de Obra Nuevo and a Certificate of Habitation.

It should also have the 10 year building insurance which involves a geological survey, concrete and iron reinforcement tests during the construction. This will no longer be valid but they would not have legally completed the building process without one.

If the current owners cannot produce them, walk away, quickly.

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Re: Legal report

Postby Lucky Luke » Tue Jul 02, 2019 8:02 pm

Beachcomber wrote:Are there other properties very close by? Are you sure that it is not built on pro-indiviso land? In order to give a more comprehensive answer much more information and a study of the documentation would be necessary


Hello Beachcomber!
Thanks for your views on this matter. There are at least 4 properties neighbouring the property we'd like to buy (and spend the rest of our lives in :-).
What conclusion are to be drawn from this fact?
What is pro-indiviso?
What other info/documentation would you need to be able to shed a bit more light on this legal issue?
Kind regards,
Luke

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Re: Legal report

Postby Beachcomber » Tue Jul 02, 2019 10:05 pm

Pro-Indiviso is where a plot of land has been divided up physically but not legally because, generally, land cannot be divided into anything less than one hectare (ten thousand square metres).

In order to circumvent this law and build houses on smaller plots of land an escritura is drawn up whereby all the individual owners have a part share in the whole plot so they are all joint owners of the entire plot rather than owning their individual plots of land.

This is not illegal and is fine where all the owners are, for example, members of the same extended family but it is a very dangerous situation for someone who is sharing the land with total strangers. The main problem is the fact that if one of the owners gets into financial difficulty the plot of land could be embargoed. Not just his own section of the plot but the plot in its entirety.

You need to take a careful look at the escritura for the land to ascertain if it is owned outright by the current owner of the property or if, in fact, it is owned jointly. This information should also be shown in the nota simple which will have been obtained by your lawyer as part of the conveyancing process.

Ask your lawyer the direct question, "Is the land on which this property stands pro-indiviso?". If you are not satisfied with the answer get a second opinion or have the nota simple and/or escritura translated by an independent professional translator who is familiar with this kind of work.

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Re: Legal report

Postby Wicksey » Wed Jul 03, 2019 1:30 pm

Lucky Luke wrote:Interesting! Is your plot also in 'protected area'?


I thought if the land was protected you couldn't build there?? We are in the campo on rustic land but the house was built in 2000.
Before purchasing this we were told to walk away from a house that were were interested in buying as it was on pro-indiviso land so I would definitely avoid that, as Beachcomber advises.

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Re: Legal report

Postby Lucky Luke » Thu Jul 04, 2019 8:25 am

Beachcomber wrote:Pro-Indiviso is where a plot of land has been divided up physically but not legally because, generally, land cannot be divided into anything less than one hectare (ten thousand square metres).



Thanks Beachcomber! I will do. Although I have to say that we tend towards looking for another property. We don't want to live under the threat of legal issues. Speaking of which: our lawyer wants us to sign a very broad power of attorney at the notary's office. Is that something we should go along with? It seems as if we're giving them the power to do almost anything in our name. Doesn't feel comfortable...

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Re: Legal report

Postby Enrique » Thu Jul 04, 2019 9:20 am

Hi Luck Luke,
Limit P.O.A to house purchase only.
UNIX is basically a simple operating system, but you have to be a genius to understand the simplicity.

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Re: Legal report

Postby Beachcomber » Thu Jul 04, 2019 10:25 am

Your lawyer only needs a power of attorney if you are not going to be here to do things for yourself ie. sign contracts or escritura, set up standing orders and operate bank account etc.

You need to have absolute trust and confidence in someone to whom you grant a wide-ranging power of attorney and, as far as I am concerned, a Spanish lawyer just would not fall into that category. It means that he can literally do anything as though he were you.

If you are not going to be hands on during the purchase process just grant a limited power of attorney, as Enrique says, to purchase a specific property and cancel it as soon as the process has been completed.

However, If you are married or have a trusted partner it is a good idea to grant a reciprocal wide-ranging power of attorney to each other then, if necessary, only one of you needs to be here to sign documents.


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