The division of a building into separate individual properties
We have recently received an enquiry from a reader asking whether a building to which he has title and which is built on three floors could be divided into three separate apartments each with its own independent title.
The same question could also be asked with regard to a detached house built on two floors both of which could be used as individual self-sufficient properties making a shared use of the garden and swimming pool for example.
However, would divisions such as these be possible from a legal point of view and could the original titles in land registry be amended to reflect the new reality of the properties?
The first consideration is that situations such as the ones described above are subject to the planning regulations of the municipalities in which the properties are situated.
As such, the first thing that one would need to do would be to see if the result of the divisions of the properties into separate individual dwellings would be compatible with the planning regulations that are applicable to the area in which the property is situated.
For example, in many residential areas outside of the main towns in which detached properties are built, the planning regulations refer to a residential use that permits the construction of “single family houses” on plots with a determined minimum plot size.
This would in principle impede the division of an existing house two or more separate individual dwellings on one sole plot.
However, in the case of a town house built on several floors, which could be physically divided into separate apartments, the planning regulations may prove to be more permissible.
If the planning regulations permitted the creation of independent apartments within the building it would be possible to grant a deed, which would divide the building into separate individual apartments and, at the same time, establish the communal elements that the individual properties would share and their share or quota with regard to the communal elements.
Would planning permission be required to complete the procedure and legally register the title to the new independent apartments?
In a recent resolution of the General Directorate of Registries and Notaries, the registration of a deed of division was suspended due to the lack of planning permission to justify the change of use of the building from one sole property into four separate apartments.
This decision would appear to be justified on the basis of Royal Decree 1093/1997 which regulates the division of property and establishes that for the constitution of new units that can be used individually which were not created by virtue of the original title, planning permission would be required to evidence that the subsequent division (and creation of new apartments) was compatible with the planning regulations applicable.
What is the legal situation in the Valencian region?
The current regional planning statute applicable in Valencia, Castellón and Alicante regulates those acts that require planning permission in its article 213 and establishes that a licence is necessary for building new properties, to extend or carry out a structural refurbishment of existing properties, for carrying out work or uses of a provisional nature, the parcelling of land into individual plots (unless by express exemption a licence is not necessary) and the modification of the use of constructions, buildings and installations.
On the basis of this last case, it would be recommendable to visit the town hall of the area in which the property is situated to gauge whether legally the property could be divided into independent units prior to actually carrying out any work to the property.