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 a licence and an occupancy certificate.

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 an occupancy licence is needed — 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: the licence application, major or minor, 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, Finestrat, Calpe, Benissa, La Nucía, Callosa d'en Sarrià and Moraira, 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

A building is fuera de ordenación — out of planning compliance — when it does not conform to the rules in force, and there are two ways to end up there:

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

When the work is of the second kind and the deadline for ordering its restoration has also passed, the technical term is assimilated to the out-of-compliance regime. The name matters little; what matters is that the regime is much the same, and it is restrictive: no remodelling, no extension, no structural consolidation. Only works needed for safety, health and appearance are authorised — which in practice means painting and not much else.

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 236 of the LOTUP, 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 that includes the second occupancy licence, which is precisely the one 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 general fifteen-year rule does not work the same way on rural land, 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 consolidated text of the LOTUP. But on two conditions that fail more often than you would think: that they were finished by that date and that they still keep today the use and the typological characteristics they had then. 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 the cédula de primera ocupación, the first occupancy certificate, which attests to the full legality of what is built, normally after an inspection visit from the town hall. 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 apply for 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.