Illegal construction work on your home: zoning penalties, demolition, and how to defend yourself
The threat implied by the title should not be dismissed, because the issue we wish to raise—which is more common than it seems—stems from the sometimes inexcusable lack of knowledge that citizens seeking to build a home have regarding the legal procedures that this entails in compliance with the urban planning compliance and the resulting act of planning violations that entail significant penalties.
The purpose of this article stems from a recent inquiry received by this firm from Lawyers in Alicante by a Belgian citizen who learned a few months ago that the City Hall had, some time ago and without realizing it, issued a ruling declaring illegal construction assigned to him, such as developer so, from extension to his house, imposed a penalty on him and required him to restore the urban planning situation restore the property to its condition prior to the start of construction.
Those projects, which were described in the aforementioned administrative decision, were contrary to the urban planning regulations, as was explained, so the owner was required to request building permit and if the permit were denied, he would have to tear down the structure.
Although this may be misleading, it does not mean that the illegal construction can legalize, no, never, and in fact that is stated in the resolution of the Local Corporation not only the one we are discussing, but also that the property owner is allowed to request it so that the City Council can rule against him, thereby ensuring he is not left defenseless, and, if he wishes, he can appeal to the Courts.
It is clear that the classification of these works as violations of the urban planning regulations prevents citizens from obtaining legalization because the illegal construction projects cannot legalize but it does allow the homeowner to prevent the City Hall proceed unilaterally by demolishing and tearing down the structure, and then passing on all the costs.
It is the wish of this law firm in Alicante The purpose of this article is to guide interested readers so they don’t make mistakes, and if they do, we hope this article will be of help to them.
Developer: private landowner
Legally, it is considered like this the owner of the structure to be built, regardless of the size and scope of the project.
You may be a professional who works in the real estate development for sale to third parties, and so is the small one landowner who commissions the construction of a home for their own use.
The role of the developer in this regard is outlined in the Section 9 ,Law 38/1999, of November 5 under the Construction Act, any individual or legal entity, whether public or private, that, individually or collectively, decides upon, initiates, plans, and finances, using its own or external resources, construction projects for its own use
DUTIES OF THE DEVELOPER
A homebuilder's first obligation when constructing a home is to apply for the Building Permit to City Hall of the town where the land is located.
Among many other things, you will be required to submit the draft of home construction to be built will be reviewed by the technicians from the Local Corporation to verify that the building complies with floor area and buildable area the requirements of the local urban planning law.
That is why it is so important that before build if such authorization for construction, or, in other words, a permit from the Local Authority that that urban development project can be built on that specific lot.
But this building permit refers only to New Construction?
APPLICATION FOR A MAJOR CONSTRUCTION PERMIT FOR HOME RENOVATION
It is not just required for initial construction approval but also for those that are modifications of existing ones, provided that they entail a expansion of existing structures, change of use or if changes the structure and the facade.
If we examine the construction projects that, in this specific case, it report by the City Hall (home addition in 8m2; Replacement of the roof deck existing paella pan, 10.5 m2; renovation of the lower-level floor of a sanitary slab surface; protective layer for a solid wall on the retaining wall previous; parking lot) we would be dealing with a clear case of licensing requirement for such renovations, and it seems unbelievable, although in our experience we have seen it happen on occasion—for example, in this case—that technical staff and construction company may lend themselves to these illegal acts, which initially result in a substantial financial loss and irreversible negative consequences.
Based on our extensive experience Carlos Baño León's Law Firm in Alicante, ...we must say that we have rarely seen a contractor involved in this kind of behavior, though the same cannot be said of many construction companies—albeit small ones—that have engaged in this practice.
In other articles on our website, we've already provided advice on how to handle a performance contract or renovation.
FAILURE TO COMPLY WITH THESE OBLIGATIONS, CONSEQUENCES
They are so important that penalties by planning violations It would definitely be worth it for anyone who wants to construction projects whether or not they are initials, would require prior consultation with a lawyer in Spain to avoid urban planning violations which are sometimes so substantial that they can jeopardize the individual's assets.
The first thing anyone interested in build a home in Spain is that it legally enjoys the status of developer and this one the Urban Planning Law imposes a number of obligations on it, foremost among which is the requirement to have licenses relevant when carrying out construction work.
Sometimes the owner makes renovations, and these renovation work sometimes require authorization from the Local Corporation, as we explained above.
This person has to resort to a builder, and sometimes to a technical, in order to undertake these construction projects And sometimes it happens that more than one contractor fails to explain the reality of the situation to their client and does not emphasize the need to obtain permits.
In the case of a contractor, if one is involved, it is rare for them to dare to manage or supervise a construction project knowing that it is illegal, but it does happen sometimes. This is what occurred in the case before us.
When it comes to renovations, we're talking about contractors who aren't good professionals and who put their own interests before those of their clients, leaving them unaware of the serious regulatory violations this can cause.
Sometimes—and I mean sometimes—the builder He thinks only of the profit he will make from the project and, fully aware that he is acting improperly, agrees to carry out the work, sometimes convincing the client that there is no problem at all—which is not true; and at other times, it is the client who voluntarily assumes the risks of this conduct, even though the builder makes the risks clear to them.
The violations of zoning regulations carry with them not only the financial penalty but the obligation to restore the urban planning status quo prior to the violation.
[Section 236.3 of Law 5/2014 of July 25, of the Generalitat, on Land Use Planning, Urban Planning and Landscape: “If the interested party does not apply for the planning permit or authorization within two months, or if it is denied because its issuance would be contrary to the provisions of urban planning regulations, the matter shall be handled in accordance with the provisions of the Law]
It is clear that now is the time to bring in experts and explore the possibility of reaching an agreement with the City Hall, ...as minimally disruptive as possible, but if this is not done, the proceeding is dismissed, and the loss of the right to a defense is significant
We've often seen clients who have spent a lot of money having to tear down the illegal construction, which is not only extremely frustrating but also a major financial loss.
[Such acts shall be punishable by fine from 25 to 50 percent of the value of the work or installation carried out, with a minimum fine of 600 euros, in accordance with the provisions of Article 262 of Law 5/2014 of July 25, of the Generalitat, on Land Use Planning, Urban Planning and Landscape.]
Furthermore, as in the case that was recently brought to our attention, this residence was located in a real estate agency when it goes on sale, it will have the added problem that it cannot be sold until restoration of the urban planning situation.
In this specific case, and as provided by law, the City Hall scored in the Land Registry a declaration of the existence of disciplinary proceeding of the property, which means that, as one might expect, any third party who checks the property’s legal status at the Registry will avoid purchasing it.
[Article 240 of Law 5/2014 of July 25, of the Regional Government of the Valencian Community, on Land Use Planning, Urban Planning, and Landscape of the Valencian Community, provides that: “Once the case file has been prepared and the proposed measure to restore the violated urban planning regulations has been formulated, it shall be communicated to the Property Registry]
Therefore, for the time being, this person cannot sell their home, but if, within the time frame provided by the Local Corporation, no below the illegal construction, he will do so at his own expense, and it should also be noted that until the work is completed, the owner will not be able to use the water and electricity services because the companies will stop providing their services.
POSSIBLE ADMINISTRATIVE REMEDIES
A administrative proceedings to restore compliance with zoning regulations, whether it’s due to a neighbor’s complaint or because the city’s monitoring and enforcement services detect it, the most important thing of all is to appear in the administrative record and take note of the actions that have been taken by the City Hall.
Possible courses of action range from arguing statute of limitations and, therefore, the consequence that the Buildings cannot be demolished even if they are illegal; cite procedural defects to delay the case as long as possible; have an expert examine the case as well to verify with the Local Corporation whether there are alternative solutions that are not as drastic as those proposed by the acting authority, and so on.
Following the completion of the administrative file, you will always have the option to turn to the judicial proceedings, administrative litigation, assuming that good results can be achieved.
But there are many instances in which the person concerned is unaware of the initiation from the administrative record and this often leaves him feeling helpless.
In the specific case that has been brought to our attention, the interested party must appear in the proceedings and request that the decisions be served on them again so that they may file a response.
There will never be a good solution to the property developer if he acts behind the city council’s back, because the administrative proceedings will continue and will have dire consequences for him.
Customers are often advised to demand holding the builder and the technician liable through civil court proceedings and overlooks the most important aspect, which is the administrative proceeding—all of this without prejudice to taking action against the aforementioned parties, but without ever neglecting the City Council’s administrative proceeding, given the highly detrimental consequences that may result from failing to defend oneself or take action in that proceeding.
Furthermore, in this specific case, the builder and the engineer must engage with the City Council and propose solutions while taking responsibility for their actions
POSSIBLE LEGAL ACTIONS IN CIVIL COURT
In addition to the main administrative proceedings we have outlined, civil legal actions against [… ] should also be considered due to their importance Construction Companies and Building Technicians that may have been involved in the building of the aforementioned illegal construction.
I understand that, in principle, they should be required to appear in the administrative proceedings to defend the client and advocate for, or propose, technical solutions that could prevent the demolition of the structures, although considering this attempt would be rather pointless, every case is different, and we would have to see what impact it might have.
Notwithstanding that, we recommend the exercise of the civil lawsuit for damages so that any losses incurred by the individual are ultimately borne by those who are truly responsible responsible parties of the violations because of their knowledge of the urban planning laws and, therefore, assuming direct liability for any damages caused by their conduct and, in this specific case, for the costs of demolition and restoration of compliance with urban planning regulations, which will be substantial.
What we do recommend is that there should not be a Legal action against the construction company and site engineers, turning a blind eye to the actions administrative channel We would like to emphasize that, in the administrative disciplinary proceedings—which are the most important aspect and the one on which we would always focus, and therefore what we recommend doing—the key is to hold those responsible accountable so that they provide a solution to the affected private developer; a solution that may well come through administrative channels with the City Hall, or through civil court proceedings resulting in a court ruling establishing their liability.
The Opinion of Carlos Baño Abogados
Carlos Baño León Law Firm in Alicante is a specialized law firm in Real estate, urban planning, and construction law in Spain and we offer you over 37 years of experience in the Courts and advising many clients who have invested in Spain. Please feel free to contact us with any questions you may have.
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