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Buying Property In Spain

property pitfalls in spain, property legality issues spain, buyer beware spain, surveyor spain

Buyer Beware! Lesser known property legality issues in Spain

It seems unlikely that the cautious property buyer could end up owning an illegal property, risking partial or even total demolition and considerable fines, but some prudent buyers have still been duped into this property nightmare.

This issue is apart from the better publicised issues of building on non urban land, or on rustic land of insufficient size.

Even following the check list below, the buyer can end up with big problems:-

1.It’s on an established urbanisation
2.It’s got planning permission
3.The constructor is known, have viewed his other work.
4.I’ve got a solicitor acting for me*

So what can go wrong?:-

Typically the buyer has chosen to purchase a new build on an established urbanisation, they have looked at cheaper rural sites, but as a ‘sensible’ buyer they have decided that the risks of future urbanisation costs and legality issues out weigh the savings, and are happy to spend more money for the security of purchasing on a plot that has been legally designated for construction. The buyer has seen other recently finished properties on the same urbanisation and assumes that these are all ‘above board’, they have even spoken to other owners (that are not yet aware of the problems with their own properties), the buyer views and agrees to plans and layout (often the same as the existing recently built properties).

The next stage is to ensure that the constructor gets a license for the build (planning permission), he of course will do this?, but where things start to go wrong is when the builder gets a license for something else! In short the plans that the buyer sees and agrees to may not be the plans that have permission. Effectively the constructor is doing what’s necessary at the town hall end to get past the various height, volume and boundary distance regulations, which have been clearly established in the area for many years. In the mean time he has sold you a property that does not conform, e.g. the living space is too high for the plot size, the upper floor exceeds the height regulations for the area and the built elements (including pool) are constructed too close to the boundary. Typically the underbuild, which has only been given permission as trastero (storage) is presented to the unsuspecting buyer as an optional guest suite. The added living area exceeds the permitted maximum and the buyer ends up with an unlicensed illegal property.

Unfortunately this only comes to light when for example a neighbour complains or the property is sold on, at which point substantial fines must be paid by the owner and partial demolition may be ordered. A similar outcome occurs when the builder gets permission with elevations that comply to height restrictions and then (to save on excavation costs, or gain more living volume) builds the property a couple of meters higher, the upper floor becomes illegal and again fines are levied and demolition may be required. Access restrictions may also apply i.e. location of driveway entrance. The constructor may well have built in payment of fines into his build costs, buy the buyer is not aware of this and still ends up with an illegal build, and the risk of further penalties, court action, loss of utilities etc.

Non conforming elements are rarely spotted, as work in progress inspections are rare (in the UK, a site visit from the Building Regulations Officer is never far away, but not here). Instead, most cases are highlighted when neighbouring property owners object, (and on urbanisations there are nearly always other properties close by), neighbours are understandably most irritated when views are illegally blocked or partially obscured, when occupancy of excess living space becomes a nuisance, (e.g. the underbuild suite is rented out regularly) and also when the additional (illegal) volume of the new property, makes it a seemingly better purchase than their neighbouring home, effectively devaluing it.

The end result can literally wreck a happy new life in the sun for the new owner, create very bad relations with new neighbours and risk loss of savings and home. Worse still if the local government want to raise money (or need to clean up their act), they can legitimately increase fines for all illegal elements or threaten demolition. Most home owners would reluctantly cough up a €50,000 fine to save their €350,000 home, and the authorities know this. Recent new legislation also means that utilities companies can be heavily fined for supplying water and electricity to illegal / partially illegal builds and are therefore likely to cut of supplies when neighbours start campaigning against the build to avoid a fine of up to €60,000. Once illegal elements have come to light, the property is almost impossible to sell on, unless all issues are resolved. When it comes to blame, passing the buck is common (language barriers can become a great excuse for misunderstandings).

Some mayors have gone to prison for illegal build related issues and related corruption (many existing mayors are currently becoming more responsible and clamping down on illegal construction to avoid the same) and constructors may face court action, but often it is the new owner that ends up carrying the costs. After all the local town hall passed legally permitted plans, the constructor ‘only built what the new owner wanted’. Of course it is the constructor that has pulled the wool over the clients eyes in order to increase profits, but Buyer Beware! If you are purchasing a new property YOU should ensure that the licensed plans conform to local restrictions (height, volume, boundary distance, access etc) and essentially that the house is built exactly to those plans. Unless the constructor can show you that all build elements and amends have been licensed and your solicitor witnesses this, your dream could turn into a nightmare. When it comes to buying in Spain, the cautious buyer should add one more task to their ‘to do list’ and :-

5.Personally visit the local planning officer with solicitor and/or survyeyor to check licensed plans and local build restrictions.

Finally , the buyer that ends up owning a fully licensed build, is in a much better position to defend their own legal rights, should an illegal property be built next door.

There are plenty of fully legal quality property examples in Spain and buyers are currently taking advantage of recently reduced prices. Even price reduced properties will need all legality and structural issues checked by independent professionals if the buyer is to avoid common pitfalls.

Information provided by Mark Paddon BSc Hons Building Surveying. MCIOB, surveyor and property purchase advisor in the Valencia region Spain.

*Always consult a local solicitor for all property related legal issues
Published: 2008-08-25
Author: Mark Paddon

About the author or the publisher
Mark Paddon BSc Hons Building Surveying MCIOB.
Graduated from Liverpool Sir John Moores University in 1992 with a 1st class honours degree and prizes for best dissertation and best student. Mark has worked for 6 years in the Valencia community Spain proving structural surveys for home buyers, defects advice and expert witness reports. Mark has also consulted for Channel 4's 'Selling Houses Abroad' (appearing in 3 episodes) and writes property related columns for two local papers.

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