After a very dark scenario for the Marbella real estate world as result of the initial approval of the New Town Plan, the Marbella Council Resolution for the anticipated execution of the Town Plan in the process of being approved, taken on the 25th July, 2008, has shed certain light for business and property owners in buildings with so called “illegal building licences”.
According to Marbella’s New Draft Town Planning Regulation, there are around 30.000 dwellings in the municipality which have building licences which violates the 1986 Town Planning Regulation in force at present. Some owners were living in these properties and now face the lack of the First Occupation Licence (FOL), a possible execution of a Court judgement declaring the building licence null and void and in any event if they try to sell, the purchaser cannot obtain a Mortgage. Some businesses being run in buildings built with illegal building licences cannot obtain the Opening Licence (OL) and are therefore trading illegally from their premises.
With the Council Resolution, those property and business owners can legalise their position and obtain the FOL or OL before final approval of the Town Plan by the Junta de Andalucía takes place, providing the New Town Plan foresees the legalisation of the buildings where their properties and business are.
The requirements to obtain the licences are different depending on properties under the following situations:
1 - Buildings out of planning, meaning buildings on which the Council cannot redress the violated juridical order since the statute of limitation to do so has expired. The Council will grant First Occupation and Opening Licences providing the use attributed to those properties is not forbidden for the site in question under the New Town Plan.
2 - Buildings which violate the 1986 Town Plan where the Council can still redress the perturbed juridical order by the corresponding process, the property and business owners can obtain the licences under the following conditions:
a) They will have to be registered in the Land Registry.
b) The owners will have to wave their right to any compensation in case the New Town Plan does not sanction the validity of same.
c) The Licences will be given on a temporary basis. This means that once the New Town Plan sanctions them, the Licences will have to fulfil the conditions, compensations and charges that same foresees in order to be definitely obtained.
d) In case of First Occupation Licence, a bond will have to be given to the council to secure the compensations foreseen in the New Town Plan for the legalisation.
3 - Buildings with licences being challenged in Court where judgement has still not been issued or where execution of the judgement declaring them null and void has been suspended.
The conditions to obtain the FOL or OL will be the same as in number 2º above and the waiver to compensation must be extended to the case the judgment declaring a licence null and void is executed by the Court. All licences are subject to whatever is decided in either the administrative or Court proceedings about the validity of same.
The Council will deal with the application for FOL or OL in the order they are presented and we presume those affected will have to wait for the Council to inform them of the sum of the bond they have to give to guarantee the compensations foreseen in the New Town Plan for the legalisation of their properties.
On the other side of the coin are those buildings non inhabited which the New Tow Plan does not contemplate legalisation and lack building licence or this has been declared null and void by a firm judgement which will be pulled down. The idea is to try speedily recover the green belts and public facility sites for the town. All buildings with licences granted against the 1986 Town Plan and which the New Town Plan does not foresee legalisation will be subject to the statutory revision procedure to declare them null and void. The corresponding resolution will be taken in the same Council Assembly where the Provisional Approval of the Town Plan takes place.
It is strongly advisable that those property or business owners in buildings with illegal building licences which can be legalised under the New Town Plan in the process of being approved, lodge the corresponding application with the council for the FOL or the OL as if they obtain same, this will facilitate the sale of the property as bank will have to change their approach when sorting out mortgage applications. Another question being whether the financial system has then recovered from the present status of lack of liquidity and banks have enough funds available to help reactivate the sales of real estate.
Another positive consequence is that the Council Resolution will help recover the juridical security in Marbella especially questioned abroad.
Submitted by
Rafael Berdaguer,
Lawyer from the firm Rafael Berdaguer Abogados based in Marbella, Spain.
Tel: 0034 952 823 085
Fax: 0034 952 824 246
Website
www.berdaguerabogados.com
Copyright © 2008 Rafael Berdaguer Abogados All Rights Reserved