Remember that the law in Spain, the conventions and business practices, are different to those in Northern Europe. You need to be switched on and you need good independent professional advice. If you do this then you will be perfectly safe. Millions of foreigners live in Spain and enjoy all the rights of owning property here.
It’s also true that things sometimes go wrong. In these cases it is nearly always the case that they needn’t have gone wrong. The key is for you to understand the basics and to employ a good lawyer who will ask the right questions and advise you correctly.
Personally I think a good lawyer should always visit the property to look at areas, extensions, borders etc. But many lawyers are like the Olympic torch: they never go out! If you work with us we will visit the land, at no charge, and work with your lawyer.
Establish the Planning Regulations
If you are buying land for development or you are buying a building to refurbish then it is vital that you establish the planning regulations before you buy.
There are two broad categories of land in Spain, urbano which broadly speaking is zoned for development and rustico which isn’t. You will hear English speakers using the words rustic and urban to describe these categories.
You may find “urban” land located in the countryside, next to villages for example, or in an area that has been zoned for development. It’s not necessarily restricted to urban areas as we understand the word in conventional English.
Under some circumstances you can develop “rustic” land, and in the case of urban land you still need to ask the right questions before buying. In both types there are sub categories to understand, as well as regional laws to know about. Local town halls may interpret the law differently and in some, again well publicized, cases contradict the regional authority. You have to get this right. This is why you need qualified local professionals to ask the right questions for you.
The Spanish Jargon
Some terms describe the legal status of the land from a planning perspective such as urbano, urbanizable, no urbanizable, and protegido and some terms describe the current state of the land such as suelo urbanizado, which will have all its services and infrastructure; suelo en desarrollo and suelo sin desarrollar. These are all explained below.
Urban Land – Suelo Urbano
“Urbano” land is generally within cities or close to towns and villages. It is clearly marked on the local plan which is freely available for inspection by anyone who asks the right department at the local town hall. It is called the Plan General de Ordenación Urbana. Suelo urbano generally would have all the services established however in some cases they may need finishing off which would imply costs and legal fees.
There is also the suelo urbanizable category, which is land which is in the process of being re-zoned so it can be legally developed.
On this land outline planning permission isn’t necessary. You apply for detailed planning permission from the local town hall. Land which is fully urbanizado will have all the services already established such as roads surfacing, pavements, street lighting, main drainage, mains water, mains electricity, and telephone land line. Check this list off and if something hasn’t been installed find out of there is a chance a charge will be imposed on the owners of the plots to install this service.
Check with the Town Hall
Before buying make sure you get the Town Planning Certificate, cédula urbanística or certificado urbanistico, which specifies the planning zone, use, building space and building type for any plot of land.
Also be sure to check the local building norms for such things as height of buildings, whether you can put in a surrounding wall, the colour of exterior walls, number of balconies and so on.
What percentage can you build?
Check the locally applicable area occupancy rules. The regulations stipulate what percentage of the area you can build on. This will depend on a number of different factors. It maybe be, for example, that you can build on 30% of the plot you are interested in buying. You need to know.
Another regulation is the total construction allowed on the plot which again will vary and you need to know. So you are constrained in how much of the plot you can cover, and you are constrained by the maximum size of building you can erect.
Don’t Forget the Basement
Underground construction (i.e. the basement) will normally not be counted for permitted volume limitations (provided that it is totally under street level), though it will be considered in terms of construction fees. This can still be useful space. Terraces, swimming pools etc are also excluded from the calculations.
For houses which are built on a slope then the basement/ cellar area is counted for permitted volumes at a reduced rate according to the gradient of the slope.
There are rules governing the maximum height which you will also need to know before buying to be certain you can construct what you have in mind. For example the regulations may stipulate a 7 metre height restriction.
Aesthetic restrictions vary. Quite often you will be free to build what you want within reason. In historic centres you can expect regulations to be quite strict.
Rustic Land – Suelo Rustico
All rustic land is governed by the national law and by the land laws of the autonomous regions, even though it belongs to the jurisdiction of a local town hall.
Building on Rustic Land is Rarely Simple
Rustic land is, by definition, not buildable. However in specific circumstances building can take place in these areas. For example, if there is a declaration of public interest; or the drafting of a Land Use Planning Instrument, such as the proyecto de actuación en suelo no urbanizable. These circumstances can vary from greatly between municipalities. For example it may be possible in some municipalities to build on 2% of the area a total construction of 4%. So you would need a lot of land to build a substantial house, and there may be other regulations which stipulate that the buildings be used for agricultural purposes. If you are thinking of doing this the regulations needs to be carefully studied.
Take note that for rustic land you must have the approval of the regional authority in addition to the approval of the local authority. You may be handed some official paperwork outlining the approval of the local authority with nothing from the regional authority.
The regional authority of Andalucia have been tightening the regulations in recent years (for example see New Decree below). In Andalucia to build or renovate on rustic land then you have to demonstrate either that the building you propose is necessary for agricultural use or for rural tourism. In the case of the former this would mean you being registered for tax purposes as a farmer and being able to produce the documentation to support this.
Some land is more heavily protected than others. To build on heavily protected land you may have to get authority from a number of different bodies, such as environmental protection, national parks, wildlife protection, river and water authorities, road authorities as well as the local town hall and the Junta de Andalucia. All this can take time and needs to be professionally presented to stand a realistic chance of success.
The regulations are continuously being updated and are also open to interpretation by local and regional planning officers. So whatever you are told about what is possible on the land you will need a current, formal, assessment of the situation before you buy the land and this should be done by an architect.
Finally ask your lawyer to confirm that the property, in its current state, conforms with all the local, regional and national regulations.
You should ask an architect to make enquiries with the local town hall (and if necessary as in the case of rustic land, the regional authorities) that what you plan do to is permitted under the regulations that apply to the land. They may need to do this in general rather than specific terms if you haven’t had a drawings done at this stage. This is best done by an architect professional to professional, they like that and it should be done before you complete on the purchase in order to understand the attitude of the people involved and establish some positive rapport with them.
Legal Documentation and Rights
There are three basic documents:
- The Nota Simple: Land Registry
- The Catastral: Local Rates
- The Escritura: Title Deeds
The Nota Simple
Check the usage described on the Nota Simple. It will give you a clue as to what planning regulations apply to the land for example rustico or residencial etc.
Note that court orders need not appear on the Nota Simple so you should ask your lawyer to make an enquiry with the town hall (disciplina urbanistica).
Ask your lawyer to obtain a certificate confirming the document he is working with is complete and accurate because otherwise there is no guarantee from the registrar that it is.
The Catastral Document
Check the usage on the Catastral. This will also give you a clue as to what planning regulations apply to the land for example rustico or residencial etc.
The catastral value, which is not on the catastral document, is a theoretical estimate of value. It is used to calculate local taxes due on the property for rubbish collection, street lighting, etc that are collected annually. The catastral value can be found on the IBI statement which the vendor or their lawyer will give you. There can be an additional tax to pay if the purchase price is lower than the catastral value. The actual catastral value isn’t the one on the IBI statement (that would be far too simple!). It is a multiplier of this. You should also ask your lawyer to look up this information on the appropriate website of the regional authority.
If it’s too late and you have been sent a tax demand then be aware that appeal times are very short.
The Catastral document comes with a plan which is helpful but note that the catastral confers no legal rights. Many people from Northern Europe assume that this plan confers their title and that the borders on the plan are the borders of their land.
The borders are described in writing on the escritura the title deeds. They make reference to the neighbouring ownerships and natural features.
On rural property where there is no fencing neigbours may refer to trees or painted rocks to define where the border between their land is.
If you are buying rural land that is unfenced this maybe partly so that wildlife can cross the territory unhindered. You may wish to resist the temptation to fence if this causes resentment amongst the neighbours who have lived happily next to each other for generations without ever defining or caring too much about where the exact border is.
It is now required, as of November 2015, that whenever either the Nota Simple or the Catastral are updated that a topographical survey is carried out and attached to these documents. This is a sensible measure and in time will straighten out all the current discrepancies. It maybe something that can be done at the vendor’s expense.
You may have four different sizes in square metres of the land you are buying: one for each document and a measured area. They can all be different. The agent may shrug this off and say that is normal in Spain and they are right it is normal but you need to get to the bottom of why the areas are different apart from differences in measuring techniques.
In particular if you are buying a building to renovate then differences in areas between the documents may reveal that part of the building is an illegal extension. The ”extension” may even be very old and look like part of the original structure. This can be true of buildings in the countryside. Discussions with the local authorities may reveal that you have a considerably smaller area to renovate than you thought.
It is even possible that you are required first to reinstate the building so that it complies with the built area permitted under the site. Then when that is done, and it could take months or even years, you can apply for the licence to renovate the building as you wish to.
It is common that catastral documents are not updated when the property is improved or extended in order to avoid paying increased taxes. You should insist that this is corrected now by the vendor prior to contract as there may be an obligation in the future to pay back taxes.
When you are calculating the area you have available to build or renovate bear in mind that permanently covered terraces will count at 50%.
There is a set procedure for border disputes and it involves a lawyer and a topographical surveyor from each party meeting on site to agree the position of the border and draw it on a plan.
Ask your lawyer to confirm your access rights and responsibilities to contribute to the costs of maintenance of any shared access.
Ask your lawyer what happens if there is damage to the access road of infrastructure during the construction. Who is held responsible if one of your contractors damages part of the access that is in either private or public ownership. A truck may knock over a street sign. How is the damage assessed and paid for?
Many properties have some kind of community ownership whether that be access rights and responsibilities or common areas.
Ask your lawyer to make enquiries with the administrator about any debts on the property you are interested in or upcoming expenses. Ask to see the minutes of recent meetings.
Most, but not all, urban land will be connected to mains electricity, mains water, and mains sewerage. Ask your lawyer to check for any disputes amongst the community of neighbours over the infrastructure. Services on rustic land varies enormously. You may have to go off grid. Indeed you may prefer to go off grid.
If you allow yourself a back up generator for electricity life is considerably easier. This is not very “eco” and it is certainly possible to have all modern conveniences and be off grid. It can certainly be achieved if your home is energy efficient. It needs careful thought and planning of the renewal energy sources and system sizing. At the time of writing the “sun tax” has not been fully resolved.
Wells and water rights are highly regulated and licenced in Spain. Your lawyer should check all documentation.
Irrigated land (look for the status on the Nota Simple and Catastral documents) is considerably more valuable than dry land so wells and irrigation rights are jealousy guarded. Obtaining a licence to dig a well may not be easy or possible. The authorities have to manage the ground water. Your licence may regulate how much water you can draw. All the neighbours may be affected if you dig a well and draw water from it. Water purity may have to be tested and approved.
If you are buying land with a well and pump machinery ask to see evidence that it has been serviced regularly.
Rights to water from acecias (irrigation channels) are documented. There may be a community of owners who benefit from the acequia and who maintain it. You may have the right to a certain number of hours a week from which you fill your storage tanks.
You should check if the acequia has ever dried up.
I know of a residential “urban” estate where every property has its own septic tank. It is a condition of ownership that you agree that, when the time comes, you will contribute to the cost of a mains system. This could be a considerable amount. In the meantime every villa has to make its own provision.
Soak-aways need to be carefully installed and managed.
Septic tanks and cesspits should be registered as being on the land. Ask your lawyer for advice.
Topography and Geology
These can affect the value of the plot considerably.
It costs more to build on a site with a steep slope. You may have to excavate a platform, or build out on stilts, or both, or accept a building with many different levels. Quite often the site with the best views are the one that have a slope!
Your architect will need an accurate topographical survey before they can begin to design your home. However a discussion over the kind of home that is possible can take place with a visual inspection.
The geology is hidden so you don’t know what is there until you have carried out a geotechnical survey.
A geological survey is a requirement of the College of Architects and the building licence.
If an area is unstable then t will generally be known. You can look for cracks (or worse!) in the neighbouring properties.
If you are worried but don’t want to lose the plot to a competitive buyer you may be able to agree with the vendor that you pay a deposit subject to a satisfactory geological survey.
The presence of neighbouring villas in the same geological area may encourage you to assume your own plot is also viable from a geological point of view.
A geological survey comprises of drilling into the ground taking samples and analysing them. It can take a few weeks to test the samples and compile the report. If the land is suspect then a more intensive survey may be recommended i.e. more samples. If your sample happens to miss a huge rock underground then the survey report may be clean but you then find you have an expensive problem to remove. So you need a good geological surveyor.
A geological survey is a very technical job with great legal and professional responsibilities.The survey report will indicate the stability of the ground. It will also inform the architect as to the strength and specification of the foundations and the necessity or otherwise of retaining walls. The architect is constrained by the findings of the geotechnical survey.