Consultations in forums such as “Help urgently. Problem with license” “Urgent, they tear down my house”, “Please, I need urgent help, they take my home away from me”, etc. are increasingly common.
At the same time, it has become usual to hear news about urban planning scandals. Cases and cases of corruption of which political parties accuse one to each other.Have you ever thought that both situations are related?
Yes, the above mention problems of individuals and their homes are the consequences of these town planning scandals.
When politicians and civil servants break the law, rather than ensure its compliance, the harmed ones are the citizens.
How did we come to this situation?
The most widespread response is that the root of the problem lies in that the urban development has become the main source of financing for municipalities.
However, this response is to simplify very much things. The reality is that regulation of the land development has gone from being a social issue (where the ultimate goal is to ensure the right to adequate housing), to be a financial issue: who and how it is going to keep the capital gains resulting from urban planning (planning gains); and this question affects all levels of Government Administration.
How is it possible that urban planning is “so interesting”, economically speaking?
Very briefly, the reason is that the successive modifications of the first modern urban development law in Spain (of 1,956) have been “expropriating” the right to build from the landowner to the hands of the Government Administration.
The owner of the land is not entitled to build anymore, unless the Administration – through zoning and urban planning – assigns that right. But also in order for the landowner to acquire that right, he has to follow a series of steps:
- The right to develop the land (urbanize) is acquired once the Administration has approved the Specific Town Plan and that land is qualified as “developable land area” ( suelo urbanizable);
- The right to build is acquired when it is already urbanized and carried out all the cessions stated in the Plan to the Town Hall within the period specified in the plan. The land thus becomes Urban;
- Prior to build you still must obtain a mayor work licence, and it will be necessary to build before the license expires;
- It will be possible to use the construction (building, house, premise, etc.) when you get the “certificate of occupancy” (now first occupation license) that will be given when it has been proved to have constructed respecting the building permit.
At this point, the amendment of the Land Act of 1,990 created other forms of real estate speculation. Thus, plans could delimit areas of land and classified them as “non developable land areas” (or rustic land), constituting a “reservation area of land” over which the Administration had a right of first refusal (i.e., if you were selling land within these areas, the Administration had right to keep it in the first place). When time had passed and the Administration had acquired all the reserved area at price of rustic land, it would convert the area into a “developable land area” and all planning gain generated by the classification would be for the Administration. Developable land area at a bargain price!
Another way of speculation was the Administration faculty of altering the town planning through “Planning Agreements” by which the Administration could ask for more cessions than the legal mandatory minimum. This power blocked the possibility of developing land, since developers could not work if they did not submit themselves to the Administrative discretion. This discretion allowed that the Administration became judge and jury, because it would impose and receive the cessions. Or the promoter was surrendering to the administration or he was not constructing.
Let us not forget the “ius variandi” of the Administration. This principle states that the Administration, which has to look for the good of the community – rather than the individual interests of each owner – can change its mind regarding the classification of a land and the landowner thereof has no right to compensation (remember that the landowner has no right to build unless this right is given by a Plan). “What the Administration gives you, the Administration can take it away from you.”
Summing up, the Administration is the owner of the faculty to build, which assigns it to a particular land by means of the urban planning and the Administration may alter the planning at will.
Well, it is not that easy (because law states some requirements, such as the obligation to justify – give reasons – for the changes in planning), but it is easy. Reality has shown that it is “too easy”.
What it has just been said does not mean that every Administration has abused of its powers to its own benefit. But the temptation has been too strong for many people.
Let’s add now to this situation the slowness of the Courts and the equation gives us the result of thousands of homes built “illegally” with the blessing of the Administration and with the favour of politicians who were in charge of the Administration at that particular time.
The equation gives the result that thousands of people in Spain have invested all their savings (and their savings for the next 20 or 30 years) in buying a home in the confidence that if the Administration has allowed it to be built was because everything was fine. Those same people now see how the same Administration (although probably with new politicians in charge) tells them that theirr housing is illegal.
As we said, when the Administration breaks the law, the losers are the citizens.
What is the conclusion to be drawn from this process? To ask for a “simple note” (nota simple) in the land registry is not enough precaution before buying a house. Before conveyancing you need to check the town planning situation of the house in the Town Hall. The legal advice by a specialized lawyer in town planning has become a necessity.
But this process, all the scandals, has had other consequences that the citizens should be aware.
One of these other consequences is that the Administration now monitors the compliance of the town planning regulations very closely, because nobody wants to be accused of new cases of corruption. The cost of this strict surveillance has been charged upon citizens through rates, and these rates have a second way of revenue collection importance to Administration through sanctions imposed to those who do not pay them.
Pruning trees in the garden, constructing a swimming pool, repairing a wall, even changing the kitchen floor, are acts that require obtaining previously a license, for which procurement you must pay a fee.
Performing these acts without a license constitutes a town planning infraction which may result in the opening of two types of procedures: 1 – Disciplinary proceedings whose purpose is the imposition of a penalty, 2 – Procedure for the reestablishment of legality in urban development (which purpose is the demolition of the illegally built)). Both procedures are processed in parallel and may result in both having to demolish what has been done without a license and paying a fine.