Illegal buildings or extensions were hardly ever prosecuted in Mallorca in the past. But those days are over. In the worst-case scenario, parts of buildings erected without permission can no longer be legalized afterwards. Then the wrecking ball looms!
Kirsten Schwarzer's (name changed by the editor) nightmare began with a downpour. One morning in October last year, it dripped onto the expensive carpet in her finca between Llucmajor and Algaida. It soon became apparent that part of the covered conservatory was completely dilapidated. Schwarzer, who had bought the small country house with her husband three years earlier, commissioned a roofer friend to carry out the necessary renovation work. However, he first asked the couple to apply for the necessary building permit from the municipality of Llucmajor.
After a brief review at the town hall, the application was rejected. Reason: Although the conservatory had been entered in the land register, its construction had never been applied for or approved by the town hall. "Illegal", Schwarzer heard the official say flatly. And what was even worse: it was very likely, the town hall employee continued, that the Germans would soon be served with a demolition notice. After all, it would be impossible to legalize the extension at a later date, even if taxes and fines were paid. Forever and ever.
Protection of stocks lifted
„Not an isolated case“, knowsß Tomeu Clar from the law firm „Palmaluris“, a lawyer specializing in real estate law in Llucmajor. The reason why many homeowners in Mallorca, and especially in rural areas, are currently worried is the abolition of the protection of the status quo for illegal properties on so-called suelo rústico, i.e. rural land, which came into force last year.
„An almost unbelievable process“, says lawyer Clar. Because: Houses or extensions that were built more than eight years before this change in the law came into effect can never be legalized again. Only illegal buildings that had already been completed for at least eight years on December 31, 2017 will continue to be protected. Buildings that had not been completed for eight years at this time can never be grandfathered again. They are threatened with demolition. In other words, they have to be demolished.
And the fact that this is by no means just an empty threat is demonstrated by the first demolitions of parts of houses ordered by the municipality, not least recently in Calviá and Andratx.
When is a property illegal?
The better question is: When is a property in Mallorca legal? „A property is legal if it was built according to the regulations of Spanish public building law, i.e. if a building permit was granted before construction and the municipality approved the building after completion“, says real estate agent and fully qualified lawyer Lutz Minkner. „After acceptance, the owner can then have the building entered in the land register by means of a new building declaration. To do this, he must present the building permit and building acceptance certificate to the notary.β
Legalize afterwards
So far so good. But what about houses or parts of houses that have been erected or built without the necessary permits? „As always – it depends. If the house or extensions are eligible for approval under current building law, in particular if the regulations on building volume, height and boundary distances have been observed, the building application and building acceptance can also be applied for retrospectively. At the same time, however, there will be a fine for illegal building. But at least you get a legal house this way,
explains Lutz Minkner.
If the building regulations have been ignored in the illegal building or its extensions, the legal status can only be restored by (partial) demolition - nowadays elegantly referred to as "reconstruction". Although this is frustrating and costly, it is ultimately worthwhile, as without a return to building law conformity, a sale is very difficult or even impossible.
What exactly is grandfathering?
In the Balearic Islands, there is a limitation period of eight years for the punishment of building violations, regulated in the “Ley de Disciplina Urbanistica”. If the illegal construction work was completed more than eight years ago and no sanctions were imposed by the building authorities during this time, the property is generally protected, i.e. there is no longer any threat of demolition. This means that even those properties that are not eligible for approval can be saved.
But: This clearance of old buildings is not a subsequent legalization. The house or extension is still illegal; however, the owner is protected from a demolition order or other measures by the municipality.
„If the owner later submits an application for conversion or extension to the municipality, it has the right to reject it as long as the unlawful condition persists,
explains lawyer Lutz Minkner.How can real estate buyers protect themselves from illegal buildings?
„If you want to buy a specific property, you should first check in the land register, where the property is described in detail in the new builder's declaration, whether the actual condition matches the description in the land register. If this is not the case, the property is usually illegal in whole or in part,
says real estate law expert Lutz Minkner.
Be aware of these tips before purchasing to avoid unpleasant surprises regarding the legality of your dream property in Mallorca:
- Carefully check the exact dimensions of the property (size, living space, etc.) in the land register before you buy.
- Are all the necessary permits available for the property and any subsequent extensions or conversions?
- Have all municipal taxes for the property been properly paid?
- Is the property subject to penalties or fines?
- If there is a suspicion of grandfathering, it is advisable to always consult a lawyer or architect.
Andreas John
