The right to reside in Spain

WHEN purchasing a new or resale home in Spain, you need to confirm it has a License of Initial Occupation, enabling you to legally live in the property, connect to public utilities, and obtain a mortgage if you need one.

Whether you’re considering buying a home from a private owner or a developer in Spain, there’s one piece of paper you should always check has been correctly issued by your soon-to-be local Town Hall, both to ensure the bank has no problem lending against the property and to avoid potential problems once you move in: the License of Initial Occupation (Licencia de Primera Ocupación).

We talked to a lawyer friend and expert in real-estate matters, Adolfo Martos Gross of GAM Abogados, to find out how to obtain a license and circumvent the possible pitfalls of a property that does not have one. The good news, Adolfo says, is that, most of the time, it’s a straightforward process, but, in cases of conflict, an unsuspecting new owner could find themselves on the receiving end of a demolition order.

Once the construction of a home is completed, the architect and technical architect who designed the project and oversaw the build should provide a Certificate of Completion (Certificado de Fin de Obras) that states all the work has been finished, together with details of the process and any unforeseen modifications. This must be stamped by the Architects Association, thus serving as a start date for professional liability issues.

This certificate then needs to be presented to the Town Hall, together with various other documents, to request a license. In Marbella, for example, the following are required: an application form from the local Registry Office; proof of payment of any charges and taxes arising from the difference in value between the work carried out and estimated costs in the building permit (licencia de obras); and a stamped photocopy of entry of the Declaration of New Building Works (Declaración de Obra Nueva) in the Land Registry.

When the Town Hall receives the correct paperwork, Adolfo explains, a technician from the building department will visit the property, without advising the client beforehand, to check the construction corresponds to the project. This includes verifying the amount of square meters built are the same as those that appear on the plans and the basic characteristics have been respected (i.e. that there is not an apartment block standing where a single-family villa should have been).

If everything measures up and is in order, the technician submits a report to the Town Hall, whereupon the Council gives its approval. Thereafter, you should receive a certificate, with the Town Secretary’s signature, that means you can legally reside in the property and connect to water and power services, which should make living in your new home much more comfortable.

If anything more, or other, than was permitted has been built, the Town Hall will normally refuse to issue the License of Initial Occupation until the developer, or owner, has legalised the extra built area and settled an additional tax bill. Should a property be deemed illegal, the Town Hall will first send out a legalisation order, but if this cannot be fulfilled by any means, a demolition order is then issued.

When the Town Hall is unaware a greater area has been built than was permitted until more than four years have passed, a property is classed as not corresponding to planning rules (fuera de ordenación). If this occurs, you are unlikely to be granted new permits for repairs. I know of a country house, built in the 1950s and bought a decade ago, that still needs a new roof, but the local Town Hall are unwilling to legalise it, as they rely on American Air Force aerial photography from just after World War II to deem it outside local planning rules.