Protection of existing buildings - island council allows subsequent legalization of illegal buildings on Mallorca

The legal property A property is legal if it was built in accordance with the municipal building regulations in force at the time of construction. These relate, for example, to boundary distances, building height and floor space. The prerequisite is a properly submitted building application, a building permit and acceptance by the building inspectorate. After completion, the property is entered in the land register by means of a new building declaration (Final de obra) by the owner, whereby the building acceptance certificate must be presented to the notary. Prospective buyers should have a lawyer check whether the structural condition of the property corresponds to the information in the land register and whether there are any ongoing proceedings for building violations.

The illegal property. A building or parts of it are illegal if they were built without a building permit and acceptance. In Spain, this is widespread, whereas in countries such as Germany it is the exception. The reasons are obvious: building applications are expensive in Spain, and many builders assumed that violations would not be punished, saving costs and taxes.

Can an illegal house be legalized retrospectively? This is possible, provided the building complies with the applicable building regulations. A subsequent building application can be submitted and the illegal building can be legalized. However, a penalty will be payable for the building infringement. Once this is done, the building is considered legal.

Protection of the status quo for an illegal property. In urban areas (zonas urbanas), an illegally constructed building can enjoy protection of the status quo after eight years, provided that no ongoing proceedings for building violations are pending. In protected zones, however, such protection is not possible. Please note: grandfathering does not mean subsequent legalization - the building remains illegal, but is protected from demolition measures. Since 2017, the protection of existing buildings on rural land (suelo rústico) has been significantly restricted. Buildings erected after 31.12.2017 are no longer protected. Buildings that were already eight years old by then and had no violations can still be grandfathered.

What will change from 2024?

Legalization of buildings on rural land (suelo rústico). After a year in office, the current government has implemented a number of election promises, including the abolition of inheritance and wealth tax. Another plan is to solve the housing problem with the aim of creating 15,000 homes by the end of the legislative period. Part of this strategy is Decree 3/2024, which was published in the "Boletín Oficial del Estado" (BOE) on 28.05.2024. It contains some special regulations for the subsequent legalization of buildings on agricultural land.

The illegal but protected buildings. According to official estimates, around 30,000 buildings on rural land in the Balearic Islands are completely or partially illegal. Over the years, properties, especially country houses (so-called fincas), have often been extended or converted without permission. In the past, these infringements were often ignored. Today, however, buyers are increasingly confronted with legal risks. Buyers are demanding discounts and sellers are suffering losses in value.

Decree 3/2024 is the solution to the problem. The government at the time had already made an attempt to legalize the law in 2014, but it was abolished by the following government. With the new Decree 3/2024, there is now another opportunity to legalize illegal buildings on the 'suelo rústico' - even if they do not comply with current urban planning regulations and the statute of limitations has expired.

This is what needs to be done. To do this, as-built plans must be submitted, construction costs calculated and the corresponding fees paid. The best way to do this is to contact an architect and/or a specialist lawyer for real estate law. In addition, proof of environmental measures must be provided. A fine is levied amounting to 10% of the construction costs in the first year, rising to 12.5% in the second and 15% in the third year. The deadline for implementing these measures is therefore three years.

A win-win situation. Owners can legalize their properties and sell them at a better price, while the municipalities benefit from energy efficiency measures and additional income. Anyone affected should contact an architect and lawyer immediately to initiate the legalization process in good time.

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