Illegal Urban Development Projects
The law provides the public administration with the necessary legal tools to address an urban planning violation so that, in addition to imposing penalties for such a violation, it may restore the urban planning situation that existed prior to the commission of the violation.
There are three types of zoning violations.
- a) and b) Construction work carried out without applying for or obtaining the relevant building permit from the City Council.
- c) Construction work carried out without complying with or conforming to the Municipal Building Permit that was issued (conditions authorized by the Administration—typically the City Council—and contained in the Urban Development Plan that the permit authorized).
Whether following a complaint from a private individual or an action by the Inspection services, the file continues with the Inspection Report or printed statement that records the inspection action carried out on site to verify the infringement, which must be completed by the acting officers and signed by the person present at that moment at the location, whether the owner, the tenant, the persons carrying out the works or the person whom the owner has left in charge.
Once the inspection report has been drafted, a distinction must be made between the following scenarios:
1.- Works that are being carried out at the time of the inspection. In this case, the procedure is initiated immediately.
2.- Obras terminadas. Solo podrá iniciar el expediente cuando estas obras conforme el plazo legal no haya prescrito.
3.- In cases of use for purposes not provided for in the legal system, the file is initiated in the same way as in section 1, since no limitation period applies when dealing with a permanent infringement resulting from a constant use that breaches the legal system.
The purpose of the file, as we have said, is to restore the legal urban planning situation to the moment prior to the infringement. Therefore, one of the essential precautionary measures is the order to halt the works, since it must be avoided that the urban planning infringement becomes consolidated.
This order to halt the works, which is a precautionary measure, must be notified to the interested party and is enforceable, meaning that it cannot be suspended by the interested party in any way.
The Law grants the Administration executive powers to coerce the owner into complying with said order to halt the works. Among these coercive measures, we can mention the following: coercive fines, which are repeatedly imposed during the period of non-compliance on a cumulative basis; notification to utility companies to cut off supplies; subsidiary execution by the Administration at the owner’s expense, with the subsequent charging of the costs to the owner, etc.
The adoption of the precautionary measure of suspension is simultaneous with the order to legalize said works, if this is possible.
Therefore, when the order to halt the works is received, the order to legalize them will be notified in the same resolution.
Legalization will take place, if possible, by applying for a building licence from the City Council.
The legalization order operates as a requirement addressed to the owner so that the works carried out, whether completed or not, are brought into compliance with a licence, for the simple reason that the licence is an authorization granted after verifying that the work or land use complies with the urban planning provisions established by the City Council; in other words, it is a legality control.
Licenses serve as a means of ensuring compliance with the law.
Although we may see licences as mere revenue-raising instruments, the most important thing to bear in mind is that they are a mechanism designed for the Administration to control the activity to be carried out.
Due to our many years of experience, we have seen that many foreign buyers have a mistaken view of what administrative licences are.
How many times have buyers come to our firm after receiving a demolition order, without even having a building licence, or with licences that cover very different works, all because, when they hire small builders, they are misled and are not warned of the seriousness of the consequences.
They are misled when they are informed about licences, which are often presented as if they were mere fees or taxes. They are advised to pay as little as possible, and for this reason they are often advised to apply for licences different from the works that are actually going to be carried out, as well as not to declare their real value, in order to pay less tax. This is a deception, and the consequence is that the client later finds themselves facing the problem, with nothing they can do against the builder, who will also usually be insolvent.
If the licence application is rejected, or if within the period of 2 months the owner is required to apply for the licence, this will entail the demolition order for the works, either, as we insist, those that have been halted, as well as those that have been completed but have not yet become time-barred.
It should be remembered that completed and illegal works for which the infringement has become time-barred (15 years in the Valencian Community) may not be demolished, although they will never be capable of legalization and will be considered out of planning compliance.
As regards the order for the demolition of works, it should not be assumed that this always means the physical destruction or demolition of the works, because sometimes this is not possible. Therefore, in such cases, measures pursuing the same purpose and that are feasible will be adopted, such as, for example, walling up a railing, concreting over a swimming pool, etc.
Due to the necessary brevity of this article, which only addresses the restoration of the infringed legality, we leave many related issues untouched, which we will develop on our website. However, we wish to highlight the importance for the affected party of having the advice of a lawyer specialized in real estate law, because during the initiation of this procedure for the restoration of legality, they will have the opportunity to intervene by submitting a written statement of allegations and proposing evidence, all in order to avoid defenselessness by ensuring that they are heard and can defend themselves.
The Opinion of Carlos Baño Law Firm
Many times, clients come to the office of Carlos Baño León real estate lawyers when measures and final declarations have already been agreed because no allegations have been made against them. Therefore, it must be very clear that the administrative file for the restoration of legality is a procedure regulated in all its details by Law, in which the affected citizen may appear and defend themselves from the very first moment. In addition, in its actions, the Administration is governed by the principles of legality and proportionality, among others, and arbitrary action is never allowed, since such action is subject to the assessment and review of the Courts and Tribunals.
