When buying or selling a rural property in Mallorca it is essential to have the support and advice of a professional with expertise in the field. And the matter is not only limited to the Real Estate aspect of such transactions, being especially important to pay attention to the Urban Planning Law.
The advice of a specialist with urban planning knowledge is key, as properties built on rural land can involve complex legal scenarios when it comes to their sale.
It is of great importance for both the seller and the buyer to be aware of the urban planning situation of the property, since this situation can significantly limit the owner’s entitlements, especially with regard to the construction regime, and can lead to liabilities if full and transparent advice is not provided regarding the limitations.
Few will be the occasions, and fortunate the parties involved, to find themselves before a rural property with no urban planning obstacles. Imagine the typical country house that since its construction (with the corresponding licence) has not been altered in its architecture, still maintaining its essence and original form.
The great majority of properties on rural land are family properties, which are passed on from generation to generation, in many cases being second and weekend homes. For this reason, these properties often undergo refurbishment in order to adapt them to the wishes or needs of the owners who are looking to relax in the summer, or even to make an economic profit by renting them out.
These changes and renovations, which are sometimes thought to be of minor importance, can lead to significant liabilities and great economic penalties in terms of urban planning.
The importance lies in the fact that since the enforcement on January 1st 2018 of the Urban Planning Law of the Balearic Islands (LUIB), it must be borne in mind that the requirement to re-establish the disturbed legal order on all kind of rural land (previously reserved exclusively for highly protected rural land) is not subject to any time limit. This means that since 2018, the authorities have the ability to initiate any procedure for re-establishment on rural land as soon as they deem it appropriate, as this power does not expire.
A distinction must be made at this point between the expiry (limitation period) of the authorities’ ability to demand the re-establishment of the property and the expiry of the urban planning infringements.
It is not the same to have committed an infringement and for it to be time-barred (due to the passing of the years provided for in the regulations depending on the type of infringement), as it is to have committed an infringement and for the authorities to have the power to demand its remedy (through the re-establishment of the property).
Let’s see it in detail.
Firstly, we must focus on identifying whether the works were carried out (and completed) before or after 2018, as we would be faced with two different scenarios for the purposes of applicable regulations depending on the time at which the infringement was committed:
-If the urban action (construction, reform, work, etc.) was completed before January 1, 2018, then the Land Use and Planning Law (LOUS) must be applied. The LOUS is still in force for all urban development actions completed before 1 January 2018.
-On the other hand, if the work was completed after 1 January 2018, it will be the LUIB that determines the statute of limitations.
Thus, if we wish to analyse the question of the limitation period for the infringement, we must confirm in which scenario of those described in the previous paragraph we find ourselves.
For those infringements in common rural land (not on protected rural land, in which there is no limitation period) in which acts object of infringement were fully completed before 1 January 2018, the limitation period for the urban planning infringement is a maximum of 8 years, after which time the administration has no power to require the owners to restore urban planning legality.
Otherwise, and following the entry into force of the LUIB, infringements that were finalised after 1 January 2018 (regardless of whether they had begun during the period of validity of the LOUS) maintain the same limitation periods for the infringement of a maximum of 8 years, but with one exception.
This caveat is the one we indicated above, referring to the no limitation period for the power to re-establish the disturbed legal order in all rural land.
The lack of limitation period of the power to re-establish the disturbed legal order is contemplated in article 196.2 of the LUIB: “The action to initiate the re-establishment procedure shall not be subject to limitation when it concerns illegal or unacceptable acts or uses, which at the time of their execution are located on land classified as rural land”.
This means that once works have been carried out that are considered illegal on rural land and from 1 January 2018, ten, fifteen or even twenty years may pass before the Administration decides to take action against the property. Indeed, it will be possible to carry out an inspection of the property at any time. An inspection may be carried out as soon as works carried out without a licence are detected, no matter how minor they may be, and the corresponding reinstatement proceedings may be initiated.
Therefore, if a rural property is affected by an urban planning infringement but, in 2018, this infringement was already time-barred, the lack of limitation of the power to re-establish the disturbed legal order does not apply. On the other hand, if the infringement was not yet time-barred in 2018, or if the urban planning infringement is committed subsequently, we must always bear in mind this possibility for the administration to initiate the reinstatement procedure.
There are many urban planning matters that are key when carrying out Real Estate transactions, and they must be dealt with in detail in each specific case.
The fact that a property is urbanistically speaking totally or partially “out of order” or “out of planning status” means that this property is subject to great limitations in many different aspects, such as the works that can be carried out, or the documentation inherent to the property (deeds, certificate of occupancy, etc.).
In short, when buying (or selling) a property that is totally or partially out of planning, it is especially important to have a team of professionals specialised in the matter (whether lawyers, architects, technicians, etc.) who can analyse all the urban planning aspects related to the property and advise the parties concerned in the most appropriate way in order to avoid much greater difficulties than those of not being able to build a barbecue.
Camila Ortiz Castro
Lawyer
cortiz@monlexabogados.es
