Should you complete without a habitation certificate?

Ads, no doubt you're not bothered either way, but just to clarify my comment was not intended to oppose your view.  Yours, I accept and agree.

The aspect I'm raising is different - I'm questioning the future treatment of properties without HC's. The government have allowed 10,000 plus (?) properties to be occupied without an HC, provided the usual services and accepted IBI payments - so where do they go with this?

In most cases I know there is a complete impasse with the local town insisting on the occupants of the urbanisation making good the shortcomings of the developer, who's either gone bust or no longer working on site.

I bought a property last year in the Murcia region.  I had asked my solicitor for a copy of the HC and was told that he knew the urbanisation and it was well established etc etc and it wasn't necessary.  I know the solicitor quite well and respect his judgment, but still opted to raise the matter with the Notary.  She emphatically told me that HC's only apply to new properties and there was no issue on this property and no need to see any confirmation of this nature.  So the sale completed.

To me the Spanish attitude seems different to that of ex-pats opinions you read on EOS.  Of course I would never buy a property where there was even the vaguest hint of a problem.  But you have to wonder if the those communities without HC's will still be "blighted" in any way in say 10 years time?  I suspect not and like the clouds in the Spanish sky, it will gradually disappear.

I have never bought a property with an HC in place yet, 4 friends in Spain have house's with no HC, when I first bought my first house I asked my solicitor about the HC after reading all the stuff on here about them, only to be told that when the house was built they were not about, that house sold and the new buyers never asked me for it. I have had all the services from day one, have had them all changed over to my name without any questions asked or problems caused.

It's a fact that thousands buy and sell every day with no HC, or even the mention of it, rightly or wrongly in  accordance to the law it happens this way, who thinks they can change the way Spain works?

As for buying a new built property perhaps having no HC could cause a problem sooner or later, who knows?

Notaries and Registrars have historically been guarantoors of the private side of legalities related to property ownership: Owner, title, loans and encumbrances, means of payments, correct registration of ownership to give public faith of these private transactions before third parties.

Even in  Land Act of 2007 it was not clear that  Notary and Registrar must require First Occupation License to authorize / register deeds of end of works.

Notaries wrote an online guide by that time where they wondered about this requisite of the article on End of Works deeds:

b ) the documentary evidence of compliance with all requirements imposed by the legislation regulating the building to deliver it to their users

What document does this refer to? They guessed then:

Ten-years obligatory building insurance? Habitation License? Book of the building?
          
It was in 2011 , when Land Act started too mention specific obligations of Notaries and Registrars in regards to checking on Urban legalities. Then in 2013,  these obligations were made much more precise and clear:   

Notaries :

New building deed:
- WORK LICENSE + TECHNICAL CERTIFICATION OF PROJECT BEING SET TO LICENSE

End of Works deed: 
- TECHNICAL CERTIFICATE OF END OF WORKS + TEN YEARS INSURANCE + BOOK OF THE BUILDING + ENERGY EFFICIENCY CERTIFICATE + FIRST OCCUPATION LICENSE
 

Registrars:

They need to verify all requirements above before registering the end of works deed.

When registering finished works they need to verify very strictly on existence of any urban irregularity.

So, in short words, it is not till June 2013 that the Land Registry offers a high level of safety in regards of the planning/zonning status of houses. For all houses built and registered before then, a good independent lawyers is necessary for verifying those aspects.

Demolitions? Possibly not as many as the press mentions and always a claim being possible against Local Councils is they issued licenses against Regional Urban Rules.

Thank you Maria.

So if someone bought a property after the 2013 clarification and were not provided with the required documents ( as evidence of compliance with all requirements imposed by legislation) or didn't receive confirmation that there was no urban irregularity, would the Notary be deemed to have acted without due diligence if they allowed completion to proceed.?

This message was last edited by ads on 03/05/2016.

Correct. The Notary would be deemed risponsable.

I am not intending to disrespect anyone, but in reality these transactions happen regularly in Murcia.  Which is why I've posed the question.

But heyho, I've often been told that Notaries are responsible people.

So until such time as licences are made available, notaries in Murcia continue to compromise innocent purchasers by allowing completions without all necessary licences in place, which in effect provides a property that can never acquire a mortgage, that cannot be legally rented out, nor legally inhabited? You couldn't write this script,....only in Spain!!

How can this ever accomplish the "sifting out" of properties which have urban irregularities (i.e illegal builds) as opposed to purely administrative issues awaiting licences? Also how many of these properties have had unapproved extensions built over the years which could also compromise purchasers?

The sad aspect to this appears to be that as long as the authorities bury their heads in the sand , the longer innocent purchasers remain at risk of being compromised if they do not seek out a trusted conyeyancing lawyer, and the longer the message sadly remains....... buyer beware in Murcia ( or for that matter anywhere that Notaries turn a blind eye to these uncomfortable realities)!!!

What you are left with is a system that appears to be puposefully leaving unresolved issues without mandatory controls in place (to ensure safe transmission of property from the outset) which subsequently requires increasing litigation to deal with all the after effects!

And in that process it does a grave disservice to the reputation of the real estate industry in Spain, not to mention the justice system now overloaded with litigants striving for their rights, and all at the expense of those who had genuine good intent to invest in Spain. So sad. It shouldn't have to be like this!!!!!!

This message was last edited by ads on 05/05/2016.

A good, independent conveyancer lawyer needs to prevent his client on this too.

Before getting to the notary stage shouldn't the estate agent be responsible for providing accurate information about the legality of properties?

Eddie69: It has. Actually, in Andalucía there is a specific and clear regulation on this, which was posted here on EOS 10 years ago:

http://www.eyeonspain.com/spain-magazine/new-regulations-property.aspx

Acer: Conveyancer has a direct/professional liability before the client. Estate agent is liable before Regulatory Bodies and Government department if not meeting regulations as above. It can also happen that the Estate agent assumes an advisory role with the client, which this client can prove, in this case, he is also professionally liable.

How does this work in terms of accountability and last resort mechanisms with regard to non compliance of regulations associated with non provision of licence, Maria?

Who is responsible for failures to adhere to these regulations....the agent, the conveyancing lawyer, the notary, the town hall? Or are they all jointly and severally responsible?

It's difficult to see in practice how accountability is achieved and also are there compensation structures in place?

Have you represented anyone who completed on a property but has been significantly compromised by lack of habitation licence?

When we built our house nesr Fuente Alamo in Murcia we could not get utilities connected without a Certificate of Habitation.

Perhaps it is only certain areas in Murcia that can obtain services/ complete without the certificates. I would not have expected to be able to sell our house without the COH.

The practice has been commonplace, often Electricity & Water are initially "builders supply" which is said to be free, but then gradually disappears or incurs an increasing cost, all part of the scam.  But most now have a supply through various devices and bye passing the usual rules.

Shouldn't a habitation certificate be issued after the utility services are connected, surely the property would be classed as untenable without all the utility's services in place .

I think that would be a Catch 22.  I believe the reasoning is that so long as the connections are in place for electricity and water to be received etc the Hab Cert is issued...or sometimes not!

I am in the middle of buying another property in Murcia, i wonder if i would get my deposit back if it turns out the property has no habitation certificate i think the answer begins N

That's right Newworld.  The answer would be a big fat NO!

Equally any action against the agent would be a waste of time and money.  Besides anything else, how do you prove your case when so little of any conveyancing transaction is in writing?

I've never heard of any agent being successfully sued in Spain.  There may be legislation, but it is clearly ineffective.

On this thread there has been lots of theory as to what should happen.  Whilst this is of some value as it is good to know the intentions of the system, but we should not be under any illusions, the reality is massively different.

But good luck with your purchase Newworld - personally I reckon this is a great time to buy.

Instead of the waste of money energy performance certificate in Spain ( which many bank for sale properties don't have at the point of sale ) Would it not be better if a property when it's put for sale come with some sort of info pack, to  show a buyer the property has a things like HC etc instead only to find out when you have given 10000s of euros over in a deposit, got a solicitor involved another 1000 euro. 

Cheers Acer with the good luck, I have held of buying for 3 years since I last sold, but the property I am buying was priced at 350k back in the day and I am paying less than half of that, I still feel it's still a bit of a punt I am taking,because I will complete before the Brexit vote, so good only know what will happen after that. Fingers crossed

New world I had a place in Turkey for 11 years ,Turkey as you no is none EU. I sold my property and transferred my money back to the UK without any problems .so I don't no where the OUT scaremongering brigade are coming from  the corruption between the builder's/mayor's/lawyers will still remain if the OUTs win UK citizens have been buying property in Spain long before the Spanish joined the EU and will continue to buy in Spain even if the INs win nothing will change the Spanish will be welcoming us with open arms ready and willing to take our money for substandard property l own a lovely  3 bed 3 bathroom villa with its own pool on Camposol for 10 years it's .all legal but no has no Habitation Certificate what that basically meens is that you will pay full IBI in my case 450 euro's per year but you will not get the streets lights turned on /no street cleaning /no public services/ you will have no rights to complain/ and no legal right to live in you're property and yet pay full I.B.I or get taken to court if you don't pay the Camposol residents association have been the EU court's the EU Court's have instructed the Spanish to resolve the problems but they just ignore the orders this is happening all over Spain and will continue to do so what ever the outcome of the IN or OUT vote basically because the Spanish are so corrupt.