Property Law and Tax Issues

On revising the planning situation of a dwelling, three different legal aspects can arise, each with different consequences concerning the Rights and obligations of its owners.

1. A building within the regulation: Is the building that adjusts to the planning regulations in force. In other words, in spite of when it was constructed, the building is fully compatible with the legislation in force, whereby the Rights and obligations of its owner are those appearing in the LOUS.

2. A building in an unsuitable situation: Is the building legally established under the protection of a previous planning order, but that, after its modification or repeal, is now incompatible with the new planning order.

3. A building out of classification: Are those buildings that, in accordance with the planning order in force have been subject to expropriation, compulsory transfer or demolishment, as well as those constructed or extended without the corresponding license.

In this article, we center our attention on the system appearing in the Law 2/2014, dated 25th March, of classification and use of land (“LOUS”) for the buildings in unsuitable situations and those that remain out of classification after the approval of the new planning order.

a) Buildings in unsuitable situations.

The article 68 LOUS describes the buildings in unsuitable situations in accordance to three sections:

1. These are constructions or buildings legally established in accordance to a city planning that has been revoked or replaced.

2. After the planning modifications, the building does not adjust to the decisions of the new planning in force; and

3. In this new planning is not foreseen that it be object of expropriation, compulsory and free of charge transfer or demolishment, as to the contrary it would be out of classification.

With regards to these buildings, the new planning should establish the city planning regulations to be applied.

However, the LOUS guarantees minimum actions that can take place on the dwelling, such as Works of hygiene, security, health, reform and strengthening, refurbishment, updating or improvement of cosmetic and functional conditions, as well as those necessary to comply with the regulations of fire prevention, installations of infrastructures of the building itself, installations to comply with the technical Code of the building and those of adaptation to the regulation of the removal of architectural barriers.

b) Buildings out of classification.

In accordance to the article 68 LOUS, the buildings, installations and uses that are out of classification are the following.

1. The buildings that according to the planning in force are subject to expropriation, complulsory and free of charge transfer or demolishment.

On these types of buildings no works or strengthening, increase of volume nor updating can be authorized.

However, it is possible to authorize, under exceptional motivated reasons, with specific renouncement to its possible increase of expropriation value, the Works of repairs required by public health, the security and hygiene of the people that live or occupy the mentioned buildings.

2. The buildings or constructions that have been carried out without a license or with a cancelled license even though they are not subject to adapting the measures of restoration of planning legality that involve their demolition applicable in each case.

In other words, applicable to the illegal buildings that are not subject to demolishment as a sanction, as the period stipulated for the expiry of the infringement has passed (generally this is the period of 8 years, as per the article 179 LOUS, without prejudice to certain infrigements that do not expire).

In these types of buildings, no building Works can be carried out until their legalization has been processed (in the case of this being possible). Additionally in the case of these building having been constructed prior to the 1st March 1987, supply services also cannot be obtained (electricity, gas, water, telephone, telecommunications and similar).

3. The buildings or constructions legally established in which have been carried out Works of extension and reform with having a license or with a license that has been cancelled.

In these types of buildings, no works concerning extension without a license can be carried out until they are legalized in accordance to the regulations and planning in force (if this is of course possible). The remainder of the building, however, will be controlled under the system planned for buildings in unsuitable situations.


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