Legalising unlicensed building work

Legalising means bringing what is built into line with what the planning rules allow on that plot. It is a procedure with the town hall, and it ends — when it goes well — in whichever authorisation applies and in the occupancy of the property.

People arrive through three doors. Because the town hall has demanded it, in which case there is a deadline. By their own choice, to have the paperwork in order before selling or simply to sleep at night. Or, most often, because occupancy has to be evidenced — first or second — and that is where a problem that had lain quiet for years finally surfaces.

First, whether it can be done at all

Before drawing up anything we obtain the planning report and check whether what is built fits the parameters the plan allows on that plot. Three answers come out of that, and they are worth knowing before commissioning anything:

• It fits. The legalisation project is drawn up and off we go.
• It fits in part. Legalising will require demolishing what does not, or altering it to comply. We tell you at that point, in case you would rather stop, and if you go on a demolition or adaptation project has to be added.
• It does not fit. Far better to know on day one.

And there is a fourth scenario that catches many people out: the plot may not yet be a solar, a fully serviced building plot. Legalising can require servicing it first — building the pavement, bringing public lighting, connecting to the sewer — or adjusting the external works so they meet the parameters. In Altea this happens often, and it is a chapter of cost nobody has in mind when they ask what it costs to legalise a porch.

What gets paid on top of our fees

Worth having in view from the start, because the project is rarely the largest item:

• Planning fees charged by the town hall.
• ICIO, the tax on construction, installations and works.
• A deposit, where one is required.
• If the plot has to be serviced, its own fees and ICIO, plus the cost of the lighting, the sewer connection and whatever else has to be built.

Timescales and where we work

The legalisation project takes us two to four weeks, depending on complexity. From there the calendar stops being ours: obtaining whatever title applies —a building licence or a responsible declaration— moves at the town hall's pace, and every town hall is a world of its own — some resolve in months, others take considerably longer.

We work in Altea, Alfaz del Pi, La Nucía, Polop, Calpe, Benissa, Moraira, Finestrat and Callosa d'en Sarrià, among others. In a procedure settled town hall by town hall, knowing the one across the desk counts for as much as knowing the rules.

Out of planning compliance: what it means

There are two ways for a building to end up not conforming to the rules in force, and what each one lets you do afterwards is not the same. Confusing them is what makes people believe their house cannot take even a refurbishment when in fact it can:

• Passively: the house was built lawfully and the rules changed afterwards. Nobody did anything wrong.
• Actively: it was built without a licence.

The first case is settled by article 206 of the TRLOTUP, with more nuance than is usually reported. A building is fuera de ordenación — out of planning compliance — where the plan declares it so for manifest incompatibility with its provisions, and where it occupies the roads or the open space the plan provides for: there, only pure maintenance works are authorised. But a building that has merely stopped being fully compatible is not out of compliance, and for it the plan must set a transitional regime in which works of remodelling and improvement are allowed, changes of activity included, so long as they do not deepen the mismatch with the planning in force nor amount to rebuilding the non-conforming elements entirely. Which of the two applies is settled by the municipal plan, and it has to be read.

The second case is a different matter. What is built without a licence falls under article 256: while the breach of the planning order persists, no remodelling, extension or consolidation of what was built illegally may be carried out, and all the administration can order are the works needed to avoid harming safety, health and the appearance or landscape of the surroundings — which in practice means painting and not much else. That holds even once the fifteen years have gone by.

A word on vocabulary, because it turns up in almost everything written on this: the "assimilated to the out-of-compliance regime" is a figure from Andalusian law. In the Valencian Community it does not exist, and neither does the "subjective out of compliance".

A house in that situation can be sold, as cuerpo cierto, but with a duty to inform the buyer of its situation. And while an enforcement file is open, no licence will be granted until it is resolved by legalising.

Time-barred is not the same as settled

This is the misunderstanding that costs the most money, so here it is in full.

In the Valencian Community the deadline for the town hall to order restoration of planning legality is fifteen years from completion of the works — article 255 of the TRLOTUP, the regional planning act — against the four years most other regions apply. If an enforcement file is open, it does not run. And that deadline belongs to the administrative action: the planning offence under the Criminal Code is a separate matter with its own rules.

But the deadline passing does not make the work legal. It means you can no longer be fined, and demolition can no longer be ordered. The house remains out of planning compliance, with the restrictions set out above.

And there is more, which is why the problem does not stay quiet. To apply for any licence today you must submit plans of the property with its floor areas and the deed already reconciled with reality. The town hall compares the two and sees at once whether anything was ever built without a licence. At which point it will ask you to legalise. Even if fifteen years have gone by: it will not fine you, because it cannot, but it will not grant any further licence until you do — and second occupancy falls with them, which is precisely what is needed to let the property or to sell it with any confidence.

On rural land

On non-developable land the starting point is the same — a planning report — but the rules change, and not in your favour: the fifteen-year rule does not apply on rural land at all. Article 255.5 says so, and with it the town hall's action never expires — nor does it over green areas, roads, open space, public facilities, publicly owned land or buildings listed in the Valencian cultural heritage inventory. So counting on the calendar is not an option here: each case has to be checked against the regional rules and against the general plan or subsidiary rules of the municipality, which do not say the same thing everywhere.

There is one exception with a name and a date worth knowing. Isolated buildings on non-developable land built before the Ley 19/1975 of 2 May came into force, without a municipal licence for their location on that class of land, are assimilated in their status to buildings with a licence. That is set out in transitional provision twenty-six of the TRLOTUP. But on three conditions that fail more often than you would think: that they were finished by that date, that they still keep today the use and the typological characteristics they had then, and that they are not in a legal state of planning dereliction. A 1960s farm building converted into a dwelling, or extended afterwards, no longer qualifies.

Where legalisation gets you

The goal is not the licence itself: it is being able to file the first occupancy of what has been legalised, which is what attests to the full legality of the building. It is worth saying how it works today, because almost everyone remembers it as a licence or as a certificate you had to wait for: since Decree 12/2021 it is a responsible declaration — article 233.1.f of the TRLOTUP classes it that way too — and it entitles you to occupy and use the dwelling from the day it is filed, without prejudice to the town hall checking afterwards. That is what legalisation unlocks and an age certificate does not, however well drafted.

And there is a point of sequence worth knowing before you start, because it upends timetables: to file the first occupancy the deed must already be reconciled with reality. Which means you also need an age and description certificate bringing the deed up to date with everything that is there. It can be done before the legalisation or after, but done it must be: the point is that by the end of the road all three records — town hall, notary and land registry — say exactly the same thing.