The rights and wrongs of property owners
LAST week I spoke at a conference in which an illustrious member of the illustrious college of lawyers openly stated a bunch of things which were illustrative but, they were illustrative of just how much work and re-education needs to be done, on both sides of the fence, in the field of town planning and property sales.
The illustrious member stated publically “...people that build on undevelopable land (SNU) have no rights. I’m sorry but, they have no rights.”
And then went on to say: “The root of the problem in the property field is that people don’t consult a lawyer before they buy, they should always consult a lawyer.”
The statement about rights is obviously wrong and I did say something to object but, I regret my lack of forcefulness in doing so. I was trying to ‘make friends and influence people’. Don’t be like me, if the king has no clothes, unless you’re at a nudist beach, tell him to put on a towel.
If you are one of over 600,000 people that own/ live in one of the 194,000 unlicensed/illegal properties built in the Valencian countryside you have a tonne of rights. One of the most fundamental of those rights, and one that was for many years denied to owners, is the right to be registered as living at that address (empadronamiento). From that right flow a tonne of other rights, for example access to social care, schooling, municipal services...
The issue of registration, which is regulated in art. 6 (LA LEY-LEG.. 7636/1985) of Law 7/1985, of April 2 (BOE of 3), Regulating the Bases of the Local Regime (LRBRL (LA LEYLEG.. 7636/1985)) and in the art. 53 (LA LEY-LEG.. 8155/1986) and following of Royal Decree 1690/1986, of July 11 (BOE of August 14), which approves the Regulation of Population and
Territorial Demarcation of Local Entities ( RP), has been subject to interpretation, among others, by the Resolution of the Presidency of the Government of July 21, 1997 whose art. 4 establishes an absolutely open and favourable criterion for the registration in the most extreme places, such as shacks, caves, caravans... and even ‘with no fixed abode’ that can appear as valid addresses in the register, since sadly that’s how it is sometimes.
Secondly, as I pointed out at the conference, although ever so gingerly, if the violation which represents the construction of your property has expired, you are afforded certain protections. It’s not exactly a right as in reality it’s the expiration of the right of the state/council to demand that you knock the building down. If your property is built on SNU and was finished before August 20, 2014 that’s your case. You have the ‘right’ to be protected from illegal demolition of your house by the state.
You also have the right to ask for certain types of municipal permit, especially those which pertain to the hygiene of the property. Furthermore, under article 9 of the Spanish Constitution and article 2.3 of the Civil Code, you have the right not to have those rights we have just mentioned diminished in any way due to the necessarily nonretrospective nature of the negative effects of new legislation. So ‘wrong, wrong, wrong’ about the rights of people with illegal/unlicensed properties.
Now for the second reason I’m unlikely to be on the ‘illustrious’ Christmas list any time soon. The comment about it being a good idea to hire the services of a lawyer when buying a property and that being the root of all evil in the property field. You know, I know, the estate agencies know, notaries know and a bunch of lawyers know... clearly not that one that made that comment but, a lot of them do, that almost all foreigners buy the services of a Spanish lawyer when buying a Spanish house. I feel confident in saying that all Brits do. The reason being that this is how we do it in the UK with Escrow system. Not one but, two lawyers go through all the documents, hold the funds and give the green or red light.
That adversarial system, two lawyers defending the interests of their own clients works really well. What clearly doesn’t work so well is one lawyer – as you can bet the Spanish owner leaves it up to the notary, who is after all a very clever lawyer, and rarely feels the need to have an additional lawyer – working with the notary whose role is to publically verify that what has happened really happened and COULD legally happen.
The word ‘could’ is the bear trap, although that said, the fact that a notary rarely sees the funds exchanged, and simply takes the word of those present as to amounts transferred and received, has also led to the odd reverse alchemy (converting something of value into something of less value) of converting legitimate and fiscally declared money brought to the transaction by the buyer into black/ illegally fiscally undeclared money received by other parties. Which ironically also took place directly in the offices wholly designed to protect the propriety of the transaction.
I’m happy to say that this seems to be a practice largely relegated to the past although its effects are very much still with us.
If, as we know is true, foreigners pay for the services of a lawyer before buying and they receive them and yet still they are not told for example that (pre- MIT licenses) the only legal destination for an unlicensed/ illegal property is either wrack and ruin, due to not being able to request permits
for works extending the useful life of the property, or voluntary demolition, then ‘Houston we have a problem’.
Clearly in the remit of the lawyer the word ‘could has to be replaced by the word ‘should’ and the many consequences/ limitations of buying an illegal property, despite all the rights we previously mentioned undoubtedly has. For those in the fortunate situation to be able to legalise your previously illegal/ unlicensed property through the new MIT licences, stop reading this and go and do it.
If you’re not sure if you are eligible or not see the link to a new video I have made of how to use the ICV’s (mapping service) new filter to find out in under a minute if the AVPT considers you eligible. For those of you clinging on to the term ‘alegal’, a term I also heard used erroneously again this week, these are NOT not alegal properties. Nearly all crimes/violations have statute of limitations. The fact that after that period you can’t be prosecuted doesn’t change the fact that what you or the previous owner did is still a crime.
To ram that point home after 2014 new constructions on any type of rural land (SNU-C or SNU-P) is not only a crime but, will always be one as the statute of limitations for that crime was eliminated. Buyers ‘should’ be aware of that and their lawyer or notary should tell them.
That’s what I’m working on now with a minimum information pack from those estate agencies, who are after all the ones that normally put you in touch with a lawyer, belonging to the regional estate agency association ASICVAL.
An interview with their president Nora Garcia will be next week’s article so stay tuned.