ILLEGAL PROPERTY CLAIMS
If you have purchased a house and do not yet have all your paperwork in order, we will sit down with you and propose the best way forward.
My opinion on the subject of illegal houses:
Before explaining the bad things, please let me clarify that if you use a solicitor, and he follows normal procedures, the Spanish system allows for 100% safety.
When talking about illegal houses, the cases are diverse, but in all of them their is a certain element of blame to be assigned to the purchasers in different degrees. In 100% of the cases their situation is unfair.
Even though difficult to assign a number, my estimate would be aprox. 10,000 illegal houses in Spain , even though their could be more.
The casuistic is diverse, but the bulk of the cases would be:
A. House built on rustic land with no building licence.
B. House built on rustic land that the proposed PGOU , includes as urbanizable without building licence from town hallr:
C. House built on rustic land that the proposed PGOU , includes as urbanizable with building licence from town hall:
Most of the properties are sold to low budget buyers. Many corners will have been cut to save costs both on the buyers side (not using an independent solicitor), and the builder side. Any of the three cases above will probably be combined with at least one of the following problems.
Lack of bank guarantee on stage payments.
Title deed problems. (non registered deeds etc)
Lack of project for the house.
Lack of 10 years insurance certificate.
Lack of licence of first occupation.
Undervalued title deeds.
Lack of boletines. (certifications for electricians and plumber)
WHY ARE SO MANY BRITISH PEOPLE IN TROUBLE, WHO IS TO BLAME AND WHY?
Large demand for cheap “villas” by British citizens who realise that they can actually fulfill their dream. Builders in that area realised that their was a lot of margin in selling properties built on rustic land , which is 20 times cheaper than build able land
B.TOWN HALLS /COMUNIDADES AUTONOMAS. (SPANISH ADMINISTRATION)
Town halls in the Almanzora area have proposed (during the past two or three years )their new PGOU. (rezoning), creating a lot more urbanizable land to allow a lot more building in their respective municipalities (villages), but the COMUNIDAD AUTONOMIA, has not accepted the proposed rezoning stating that they increase the build able land too much. In the interim , builders have:
Built properties on land that even though rustic they thought was going to become urban without licence but with the town hall no stopping the building (because they thought that even though slow the COMUNIDAD AUTONOMA would eventually aprove their rezoning.
Built properties in the new urbanizable area (not approved by the COMUNIDAD AUTÓNOMA), and the town hall in their confidence that the COMUNIDAD AUTONOMA would approve their rezoning actually issued a building licence. (this happend at the beginning before COMUNIDAD AUTONOMA starting making clear indications that they would not approve all that was being proposed by the town halls.
On the strength that the town hall was not stopping any of the two cases above, even though theoretically illegal, unscrupulous builder have decided to simply build on land that is rustic, was rustic, and always would be rustic.
THE SITUATION TODAY :
Everyone is waiting to see where the COMUNIDAD AUTONOMA and the town halls draw the lines of urbanizable land.
When the lines have been drawn , what will their position be regarding the illegal houses left?. (some will find a solution by 1)
At the same time the public prosecutor is involved also, as building an illegal property in Spain is a criminal offence. The public prosecutor is now very active in taking people to court regarding the illegal properties. The admnisitrative rules of Spain are clear: an illegal propertie has to be domolished. When the public prosecutor is involved on a criminal level he is free to decide to demolish or not.*
WHAT SHOULD A PERSON WHO HAS PURCHASED AN ILLEGAL PROPERTY DO?
1. Hire a solicitor/barrister. When hiring a solicitor barrister , they must be aware that these cases are time consuming and complex . They will need to find out how the solicitor /barrister will charge. It would be fairly normal to expect to pay for an initial report on what their options are. From my experience clients in these cases find it difficult to focus on who is causing their problems. . They need to discuss their expectations with the solicitor /barrister at the outset and ask him for a worst case scenario to be clearly explained to them.
What can the solicitor do for them?
If they have bank guarantees (they all should have , but from what we have seen most do not), then case is very simple, as they just have to execute them. (this is not expensive)
If the bank guarantees do not exist different avenues must be looked into and a report of the different options should be presented to the client. If the property has a combination of the problems shown above that lead the solicitor /barrister to think that it is not going to be possible to obtain eventually clean title to a legal house, then we believe in a civil court case against the builder as soon as possible. (another problem in this area is that a lot of the builders are very small, and that if they have built for example 10 properties, and everyone initiates a claim against them , they will simply not have enough money to pay, which means first comes firs served. If the builder has hidden away the money from the sale (from our experience, this happens a lot in that area), then the solicitor /barrister should consider a criminal case for fraud.
Understand the expectations of the client, and clarify if they are over optimistic . We have found that a lot of the clients with these sort of problems are not aware of how serious their situation is and therefore their expectations are too high. (i.e. expect that the bad tiling in the bathroom will also be sorted out before the case is over, when we are discuss a totally illegal house and seller that has disappeared )
WHAT THE BRITISH GOVERNMENT COULD DO:
I am not certain if they should , could or wish to do anything, but if they decided to so perhaps it could be:
TO GET THE COMUNIDAD AUTONOMA AND THE TOWN HALL TO SIT DOWN AND APPROVE THE PROPOSED ZONING PRESENTED TO THEM BY THE TOWN HALLS HOPEFULLY INCLUDING AS MANY OF THE ILLEGAL HOUSES AS POSSIBLE. (therefore giving the chance to the buyers to possibly legalise their houses ).
When the lines have been drawn and agreed on by the town hall and the Autonomic Goverment., establish what will happen with the illegal ones. (nothing, legalization after a few years, demolition).This is essential so that the buyers can initiate claims against the builders before they disappear. (a lot of buyers are postponing the claim in case their house is later legalised, giving the sellers the chance to hide asset ts etc)
SPECIAL CHIEF PUBLIC PROSECUTOR FOR URBANISTIC MATTERS (INDEPENDENT, BUT NAMED BY THE GOVERNMENT)?: * (intervies in EL PAIS NEWSPAPER at the end of e-mail)
Will he be ordering demolition when their is 3rd innocent party. At the moment he say yes.
SOLUTION FOR THE FUTURE BUYERS. FOR IT NOT TO HAPPEN TO THEM.
1. The most important thing is to consult an independent solicitor. Hiring the correct solicitor can save you a great amount of money.
Good ways to choose a solicitors:
Ask other people that have purchased property in the area.
Ask the British Consulate .
Ask your bank in England if they have a list of recommended solicitors in this area.
Ask for an initial consultation to confirm that the procedures above will be followed.
Bad way to find a solicitor:
To depend entirely on the recommendation of the estate agent or builder.
Choose a solicitor simply because he/she is the cheapest.
2. Purchase a book about purchasing a property in Spain . Their are many good books on the subject, and the procedures set out in these books in general are correct and do/should take place .If the builder says “this is Spain ” and these procedures are only followed in the books and not in practice then DO NOT PURCHASE THAT PROPERTY.
3. Always in insist on receiving bank guarantees on your stage payments. These are obligatory by law, and it means that even if everything else went wrong you would always get your money back plus interest.
EL PAIS NEWSPAPER 30th of October 2006
*THE NEWSPAPERS. (Public prosecutor in favour of demolishing illegal builds)
It is considered that their are aprox. 100.000 illegal properties in Spain , built without a licence, or with a licence that is illegal. * El Pais newspaper 30th of October 2006.
The Guardia Civil has so far take action against 12, 832 of these properties.
Up to now owners of these properties have not been overly concerned as the general public opinion is that after a series of years they would manage to legalise their properties. In many cases this has been true , because after four years of inactivity by the administration in combination with other conditions , very often it was possible to legalise the houses.
The problem has become so serious that the figure of FISCAL DE MEDIO AMBIENTE Y URBANISMO has recently been created (his mission is to coordinate all the public prosecutors in Spain in all cases that refer to illegal buildings as contemplated by our criminal code.
He has been interviewed in the PAIS NEWSPAPER (30th of October 2006), and my interpretation of his replies in this interview is: that he is in favour of more demolitions via a more strict application of article 319.3 of the Spanish criminal code . He also states that this will not always be the case, but that the tendency should be for the property to be demolished and the purchasers should take legal action against the builders that sold them the property. He also indicates his doubts about the lack of blame of the purchasers. He considers that in most cases the buyers are not taking the minimum precautions before purchasing (searches etc), and that in some cases he believes they may even know that what they are purchasing is not 100% correct, as these properties are often sold for lower prices…