The LISTA offers an inmediate solution for old unlicensed properties

The LISTA makes it possible to regularise properties completed prior to the dates referred to in its Fifth Transitional Provision, by obtaining the Administrative Certification with the value of the Property Permit and First Occupancy or Use Licence.

Law 7/2021, of 1 December, on the Promotion of Territorial Sustainability in Andalusia (LISTA) has introduced significant changes with respect to its predecessor, Law 7/2002, of 17 December, on Urban Planning in Andalusia (LOUA). With regard to urban planning discipline procedures, the LISTA has sought to establish a clear, simple and systematic regulatory framework in order to guarantee the success of these procedures.

Properties executed without a property permit or in contravention of its content, must be subject to the corresponding proceedings for the restoration of urban planning order. However, when the time limit for adopting the restoration measure has expired, it is impossible for the administration to react to the illegality.
The LISTA determines that those situations are “assimilated to out of order” (AFO or DAFO), that is, “irregular properties that are finished, on any type of land and whatever their use, in respect of which it is not possible to adopt measures to protect urban planning legality or to re-establish the disturbed legal order because the period for their exercise has elapsed in accordance with the provisions of urban planning legislation”.

The purpose of this legal note is not to analyse the procedure or the effects of the DAFO, but to analyse the Fifth Transitory Provision of the LISTA, which allows the owners of properties completed before the entry into force of Law 19/1975, of 2 May, and those for which the period for adopting measures to re-establish urban planning legality had elapsed on the entry into force of Law 8/1990, of 25 July, to request from their Town Council an administrative certificate stating the regime applicable to them, assimilated to properties with an urban planning licence. Consequently, these properties would not be susceptible to being declared in a situation of being assimilated to out of order (DAFO), but would be assimilated in their regime to the properties with planning permission both for works and for occupation or use for the use they had at that date, thereby enabling access to the Property Register and, where appropriate, to the basic services that may be applicable; and this without prejudice to the regime applicable depending on their conformity or non-conformity with the planning in force.

Assumptions:

– Undeveloped land. Properties completed prior to 25 May 1975 (entry into force of Law 19/1975, of 2 May 1975, reforming the Law on the Land Regime and Urban Planning), and which do not have planning permission. This date is determined because it was this Law that established the licensing regime for properties on undeveloped land.

– Urban and developable land. Properties completed before 27 July 1986 for which the period for adopting measures to re-establish urban planning legality had elapsed on the entry into force of Law 8/1990, of 25 July, on the Reform of the Urban Planning Regime and Land Valuations.

The following are excluded from the above regime:

1. Works carried out on properties after the entry into force of the land laws set out in the Fifth Transitional Provision of the LISTA.

2. Properties located in Green Zones and Open Spaces at the entry into force of Law 8/1990, since the requirement of having passed the deadline for adopting measures to re-establish urban planning legality would not be fulfilled.

3. The areas of maritime-terrestrial public domain and its easements, in which properties will be subject to the regime derived from the provisions of coastal legislation and, in particular, the prohibitions contained in Articles 25 and 32 of the Coastal Law and the imprescriptibility in the terms established in Article 197 of the General Coastal Regulation.

Requirements for recognition:

The wording given to the Fifth Transitional Provision of the LISTA removes the requirement that these properties continue to maintain at present the use and typological characteristics they had at those dates and that they are not in a legal situation of urban ruin. However, the LISTA also attributes competence in this matter to the corresponding Town Council, so it is foreseeable that some Town Councils may require the maintenance of the essential typological characteristics of the property that they had at the entry into force of the aforementioned laws and that they are not in a legal situation of urban ruin. In any case, the minimum documentation to be presented will be:

1. Final Certificate of Works or Certificate of Antiquity of the property endorsed by its official college, identifying, where applicable, the actions carried out after the provisions of the Fifth Transitional Provision of the LISTA.
2. “Nota simple” from the Land Registry or document that accredits the ownership of the property.
3. Proof of the self-assessment and payment of the municipal fee in accordance with the Ordinance regulating the issuing of this administrative certification.
4. Document accrediting the applicant’s identity (DNI/NIF) or representation. In the case of acting as the owner’s representative, a document accrediting said representation.
5. File number, in the case of having an Urban Development Licence or any other title that authorises the construction.
6. Application form for administrative certification of existing properties in accordance with the fifth transitory provision of Law 7/2021, of 1 December, provided by the relevant Town Council.

Conclusions and summary:

1) For unlicensed properties completed after the dates referred to in the fifth transitory provision:

– If the works can be legalised, the interested party may process the corresponding legalisation of the same by obtaining the mandatory urban planning licence.

– If they are not legalisable, a Declaration of Assimilation to Out of Order may be processed, if the circumstances of article 173 of the LISTA are met, and the procedure must be followed in accordance with the determinations of said law and its Regulations (Decree 550/2022, of 29 November).

2) Properties completed before the entry into force of Law 19/1975, of 2 May, and those for which the period for adopting measures to re-establish urban planning legality had elapsed on the entry into force of Law 8/1990, of 25 July, will be assimilated in their regime to properties with planning permission both for works and for occupation or use for the use they had on that date, and an administrative certificate may be requested from the Town Council stating the regime applicable to them.

Pérez de Vargas Lawyers