Urban planning + Spain = lawyer

How do they affect us?

Given that the town planning regulates the right to build and that conveyancing is the largest investment of an individual or a company, development plans affects us in a way that is essential in our lives.
We have already seen an example of how urban planning may affect us negatively if we have purchased a house built “illegally” because of a case of urban planning corruption.
But in addition, urban planning affects us in many other ways. To know them is important to be aware of when we will need a professional in the development planning sector.
Obviously, when a urban plan is being developed, whatever it shall be, and it affects a land of our property, we can never take anything for granted, not even that we will maintain our urban rights.

The Administration has the “ius variandi”. That is to say, it has the right to change the town planning without giving right for compensation to landowners. The reason for this right to review the town planning is that the City Hall ensures the general public interest, and this interest may have changed over the years.

So, your land may have been zoned as residential in a plan (i.e., you can build houses on it) and in the new plan it may appear as a public green area.

It should also be borne in mind that General Urban Organization Plan (Plan General de Ordenación Urbana, PGOU) uses large scale drawings of the whole town and, thus, making “small” mistakes is quite easy. For instance, the garden of a house appears in the proposed plan as public green area, where it is a private green area.

Whenever a new PGOU is being developed it is essential to go to the Town Hall to see how your property is being regulated – either it is owned or rented – to be well informed and, when the time comes, file your allegations. If you are not resident in the municipality, it is best to hire a professional to ensure that your interests are dealt with.

Once the new Plan has been approved, if its regulation is contrary to your interests, not everything is lost and it still can be challenge. Since there is a limitation period to challenge the Plan, it is essential to hurry up and to hire a lawyer, who will study and defend your interests.

Keep in mind that the Plan regulations may affect a particular house, a building, a community of owners, companies` premises, etc. It can affect the right to build new constructions, or do refurbishment`s works. For example, the Plan may establish that there can be no protruding balconies on the first floor of buildings. Any house with a terrace on the first floor would be, at least, classified as “non complying building” and, even it may be necessary to demolish the existing terraces.

And it can affect both the right to build, and the right to use what it is already built. For example, the case in which the Plan regulations establish that only the first floor of buildings can be used as offices.

But there are other circumstances in which urban planning may affects us.

Examples of individual`s ordinary activities, or business, or community of owners cases of urban planning consequences are:

– When buying a home or premises.

When, after the laborious process of finding a home or premises, you find what you were looking for, just going to the Land Registry and ask for a “nota simple” is not enough. And as we have seen, it is not enough either to check that there were licence of works and/or license of first occupation.

Not always the municipalities or developers register in the Land Registry “the planning encumbrances”, and they fall on the property, whoever the owner is, being registered or not.

Planning encumbrances are usually development costs. For example something like this would be read in the Land Registry:” La presente finca queda afecta al pago de la liquidación definitiva de la cuenta de la reparcelación, siendo el importe del saldo de la cuenta provisional de la reparcelación de X euros, correspondiéndole a la finca una cuota porcentual en la cuenta de liquidación de Y%” (this property is subject to payment of the final settlement of the account of the Subdivision, being the sum of the interim balance of X euros, accounting for the land a percentage share of Y%.).

To avoid surprises like this one, it is best to state in the purchase contract and in the title deed that the house/premises is acquired “free of liens, charges and encumbrances, including the town planning ones“, because courts have interpreted that the usual expression of “free of liens, charges and encumbrances” as not including this type of urban planning encumbrances unless it is expressly stated.

An statement like the one said above does not exonerate the buyer – do not exonerate you  – of having to pay these charges if the Town Hall ask you to pay them. What it does is that you can, afterwards, claim the seller to return to you what you have paid.

Therefore, is even much better to know in advance the possible existence and amount of the planning encumbrances, for what you will need expert advice. But also, it is important to go to the Town Hall and check the PGOU to make sure that, for example,  near the house is not planned to build a fast track (such a highway), or a large shopping mall just in front of you building that would make very difficult to park, etc. Go to the Town Hall and check all the kind of future circumstances that will make you think twice about buying that particular house and a lawyer will know where to go and who to ask.

– Town planning collaboration entities (Entidades Urbanísticas de Colaboración – EUC). 

Another very important issue to be sure of before buying a property is to know who bears the costs of maintaining the urbanization (paving, sidewalks, parks, street lights, etc.): whether it is the responsibility of the Town Hall, or if the neighbours are the responsible ones and must pay dues to a EUC. In the latter case it must be borne in mind that, in addition to the mortgage and costs of community, you will have to pay a periodic fee to the EUC, which can be much higher than expected if there are many gardens around, for instance.

– Licensing of major works and licence of minor works or “notified procedure” (actuacion comunicada).

Before doing any type of work, or refurbishment, however small, it is necessary to apply for a license, or submit a notified procedure. Even to paint inside of a house.

The distinction between major and minor works depends very much on the Town Hall, which is the one who sets the definition, the application requirements and its fees.

Usually, if the work affects structural elements of the property it will require a project signed by an architect (or a technical architect), and it will be a major work.

The main difference in the proceeding is that, when you apply for a minor works license, the Town Hall has 15 days to deny the licence, otherwise it would be understood that the licence has been granted. No more hassle.

In case of a major work licence, apart from the fact that much more documents needed to be filled in and presented to the Town Hall, the waiting period would be of 3 months and not always, if the Town Hall does not answer, the licence shall be considered granted.

When the Town Hall has not expressly granted the licence for major works in writing, once passed those three months, it is possible to think that the licence has been granted by “presumptive approval”(aprobación por silencio administrativo positivo). But assuming this “tacit consent” (in the absent of objection) and starting works involves a risk, because this presumptive approval would not be such if the works (the ones the licence was for) do not comply with the PGOU. That is to say, if the architect or the landowner are wrong and the works do not comply with the PGOU, the Town Hall will proceed against the landowner and ask for what has been constructed to be demolish and impose a fine.

So, when it comes to major works is much better to have legal advice from a lawyer, who should report on the compliance of the works with planning regulations and the risks in case of works whose legality is unclear. Furthermore, if that lawyer also has a proactive mentality, as those specialized in preventive legal advice, he will be able to advise you on how to be prepared if the Town Hall finally decides not to grant the license.

– License for activities subject to environmental authorization.

Few people know that, normally, for pruning, felling, transplanting a certain type (or all) of plants and/or trees in private gardens is necessary to apply for license.

Other common activities for which licenses are required, because they are affected by the urban planning, are to open a business, or licence for a change in the use of a house to office (or vice versa).
In all these moments – and many others – having the advice of a lawyer is very important. But, as it has being explained, it would be essential that the advisor is also specialized in administrative law and urban planning.
If, in addition to this, the lawyer practice the Legal Preventive Advice it would be even better for the client, because – whilst the lawyer advices on urban planning, on drafting contracts, on obtaining licenses, etc. – the client (this is you) will be informed of all potential risks that every particular decision may imply and will help you to be prepared for your defence beforehand.
In Ypama Abogados we pride ourselves on providing this greatest value of all, this comprehensive legal service to our clients.
We invite you to  know more about us. On our site you’ll also find other important information for you on other areas of law in which we are specialized. You can read even more about urban planning, and other topics in our Blog.

If you want to know more about the benefits that offers Legal Preventive Advice specifically, visit our specialized web page on Preventive Advice.