(This post was first published on Houses For Sale In Spain but it is relevant when you are looking for a Spanish Property so we reprint it in its entirety here)
When you are looking for a Spanish Property and it is a house as opposed to an apartment (Although we do have an example of a potentially illegal apartment, see number 5), there are certain things you need to bear in mind. Obviously your lawyer will look to see whether the property is illegal but you can save yourself some money by not even suggesting an obviously illegal property to your lawyer to look at.
Number 1: That large extension?
It is very easy to see if there is an illegal extension on the property at times. You just ask for a copy of the property deeds and you take a look in the Catastro in order to see if the whole of the property exists. Obviously the whole of the property exists in reality, you can see it, but if it doesn’t exist on a piece of paper then it may well be illegal.
However, even if it is not on the original deeds it may be legal or it may have the ability to be legalised. Confusing eh? If the construction has been there for more than four years and it is not in a protected area then the property can be legalised as the illegal building will have “Prescrito”and a fine can be paid for the extra construction. This obviously is the sellers’ cost when transferring the property over to you as they have to file a New Build Declaration (Declaración de Obra Nueva) prior to the sale.
Number 2: The hedge looks a bit close to the house!
Sometimes houses were built illegally and even though they are now legal oftentimes the property is too close to the retaining wall. Usually a property needs to be 3 m away from the side wall and 5 m setback from the front wall if it is an independent property. This is different at times and in certain areas if the house is a semi detached property but it is a good rule of thumb. Developers are often allowed to build on much smaller plots when building semi detached properties and therefore the distances can also be also smaller. Evidently by definition they have to be attached to another house as well.
Number 3: Where did that second-floor come from?
Sometimes you go to see a property and it surprises you because when you ask to see the deeds there is a whole floor missing. This can be because an underbuild has been filled in or a second floor has been added.
The issue with underbuilds (The house previously seemed to be on stilts for example) is less problematic as the footprint of the house has not changed. However a new build declaration still needs to be done so make sure it is signed off by an architect and all paperwork passed onto the notary.
An extra floor, or floors, having been added is more problematic. From a legal point of view it is the same but if this is the case then make sure to call in an architect or surveyor to look at the property and make sure that it is structurally sound as well as legal. The same thing applies here too though. If a New Build Declaration has been done approved and signed by the notary then the extension can be considered legal.
Number 4: You know that Terrace that became your living room? Is it declared as such?
The number of houses that have a previously covered terrace which has been built into either an extension of the living room or a whole new living room is astonishing. Again this requires permissions and a new build certificate. Oftentimes the owner will have built another open extension to have a terrace. This needs to be declared on the deeds too unless it is a temporary construction such as a gazebo.
Number 5: So your fifth floor attic is in a building that only has four floors!
Sometimes there are limits on the height that can be built in an area of a town. This is four floors in many areas. Therefore anything above the fourth floor is considered “Fuera de Ordenanza”. Sometimes though attic flats especially will be above that limit because they are converted porters’ lodges, the doorman used it in the past to store things for the community of even lived there because the community allowed them to.
Having an attic “fuera de ordenanza” is one of those things that can be considered “slightly illegal” there is never going to be a demolition order on it. However there is a danger for the owner of any property if the building is even deemed to be unsafe. The building insurance does not cover it and therefore if the building has to be demolished or if it has an order on it for demolition for urban planning then no compensation will be forthcoming.
Also bear in mind that if you have let’s say a third floor flat and a building suffers this fate then the owner of that attic could take all of the other owners of flats in that building to court demanding a part of their nsurance or compensation. Therefore it is something to be aware of.
Number 6: So your property stands on a plot of 2000 m and it’s rustic land?
Land in Spain is zoned into three main categories; Urban, Urbanizable and Rustic. You can build, with permission, on urban land, you can develop an urban plan for the area as a developer on urbanizable and you can also build on rustic land, if it is not protected, but only if you have more than 10,000m2 and normally the footprint of the property can be no larger than 2% of that land, so a house with a footprint of 200m2.
If you see a new house in the countryside on a small plot it is almost certainly going to be illegal. The land is unlikely to be urban. Therefore expect problems.
Number 7: So the mayor gave his permission to build despite the fact that it’s actually illegal to build so everything should be okay right?
Never ever ever trust the word of a Mayor or even the town architect on whether the property is legal. There are too many Mayors implicated in huge corruption scandals in Spain, usually by giving contracts, permits and more to brothers, sisters, cousins etc… and usually to do with illegal building. These days the power of a Mayor to grant building licences has been largely removed after the huge scandals surrounding areas such as Marbella under Jesus Gil. In fact I would go as far as to say, whatever the Mayor tells you in whatever situation believe the opposite. If you are eating lunch and he tells you it is midday then you should assume it is midnight and time to go to bed.
Number 8: What do you mean you haven’t got a set of deeds?
Deeds are legal documents that denote ownership, size, description and a lot more about your Spanish property. I know of cases of people buying “property” in Spain and when you look on the deeds there is just a plot, no buildings, no pool, no nothing. And yet they went through with a purchase in the full knowledge of that fact. Just don’t OK? If the deeds show that there isn’t a building on that plot and you look in front of you to compare and you see the Disneyland Palace then you know there is something amiss which WILL come back to bite you on the bum in the future.
So when you meet up with that shady looking guy in a bar and he says “I have a house to sell!” Run a mile and then another. You will save yourself years of hurt.
Now after scaring the pants off you let me just say that yes, you can buy property safely and with guarantees in Spain. (See Nick Snelling’s book here for example) The vast, vast majority of property is totally legal with all of the guarantees that you would expect. The above points are just things to look out for. Take care to make notes and if you do fancy a property and any of the above things look a bit iffy then communicate this to your lawyer. The lawyer has the job to make sure everything is OK (And even better they have indemnity insurance that would cover any potential loss which you should not expect from the agent).