12. Legality countryside & DAFO

Legality countryside & DAFO certificate are hot-items for buyers of rustic/rural or campo houses in Andalusia. The legal situation -with or without DAFO/AFO– for these homes namely is a bit complicated. They are significantly cheaper and offer more living space. But be aware… 90% of these homes have been built illegally during the last decades. With or without building permission of the Town Hall, but always against the rule of the higher Junta de Andalusia

This regional government now puts an end to the proliferation in the countryside through checks, fines and demolition sanctions. This however in general only applies to constructions of less than 6 years old (limitation period). To get the legal situation in writing, the DAFO certificate has been created.

Click here for the other chapters of ´LEGAL ADVICE BUYING HOUSE IN ANDALUSIA´. 

Legality countryside: legal investigation lawyer

So, for these houses in the countryside the legal investigation of the lawyer is extra important. All houses are legally sellable, even those in special protected nature area with a court demolition order, so make sure you know what you buy. They count with normal service supplies and you can get a normal mortgage, even with the DAFO inscribed in the Land Registry.

Limitation period illegal building

Limitation period illegal building

In ´normal countryside´ the limitation period of the Town Hall over illegal buildings expires after 6 years. For this you can´t have sanctions or fines anymore.

The lawyer within the legal investigation of a purchase checks the building dates, square metres and status of all parts of the construction. This he does through air photos and possibly an architect´s report with antiquity declaration. If there are buildings/extensions that have expired, then these potentially before completion can be inscribed in the Land Registry by a New Build Declaration (Declaracion de Obra Nueva).

The lawyer checks at the Town Hall if there are no legal cases against the property (anymore) and verifies what specific type of terrain it concerns and if all facilities are correct (water, electricity, septic tank).

Limitation period protected nature area

For special protected nature area applies a limitation period of 6 years from the moment of the activation of the special protection. (For the transfer period of this decree applies a period of 4 years.) After this date there no limitation period anymore and the Town Hall can always still act against the illegal constructions.

So, if everything is old enough, you normally can apply for a DAFO. This however depends on the specific Town Hall and the exact kind of protection. If you buy without a (completed) DAFO , then it´s wise to at least ask for an urban certificate at the Town Hall.

DAFO certificate

So, to provide security in writing about the legal status of a property some years ago the DAFO certificate was invented. Since then it has become a standard to negotiate that the vendor will pay for these costs. It´s wise to include this deal in the reservation contract, so ´price including DAFO (costs)´.

The DAFO proofs that all constructions are old enough according to the rules that apply to that type of ground (there´s also different kinds of nature protection). Besides of this it proofs that all service facilities (electricity, water, sewage) comply with the rules. And another advantage: Within the DAFO you can obtain building licenses for small reforms concerning hygiene, safety and livability (see below).

It has to be said that with the DAFO you acknowledge that the house was built out of the urban plans (on non-buildable land). Because of this all illegally issued licenses (building license or License of First Occupation) automatically are declared nil and the responsibility of the Town Hall automatically expires.

Council can oblige DAFO

So, the DAFO isn´t obliged but despite of the costs it´s definitely recommendable to apply for it. It gives security, also if you want to sell again in future and the Town Hall can oblige you to get it at any moment anyway. Although many towns don´t live up to it yet, they´re legally obliged to start the DAFO procedure after whatever official communication concerning a certain property. Depending on the municipality this for example can be for a:

Some owners don´t want a DAFO but are obliged. And others want to have this certificate, but can´t have because of the legality of their home or because the Town Hall simply doesn´t have a procedure yet. Make sure that your lawyer informs you well about this subject.

* It´s well imaginable that in future the DAFO becomes a standard requirement for the RTA/VTAR rental license as replacement of the First Occupation License. 

DAFO procedure & costs

In many towns the DAFO procedure takes several months en for a purchase in this case buyers often settle for a verbal confirmation, a interim urban certificate and a price retention for the future costs. These costs for the DAFO lie between € 5.000 and €12.000 for:

  • architect´s report
  • potential legal fees lawyer
  • obliged septic tank with biologic filter and service contract (yearly emptying)
  • local tax (varies between 2,5 to 4,5% depending on town over the building worth per m2 according the register of architects)
  • potential extra requirements per town hall (f.e. solar panels, planting of trees, etc in protected nature land)

Urban report / certificate

By the way, not in all towns it´s possible to obtain an urban report or certificate (independent if you do or don´t want the DAFO) and in a single case the costs can be extremely high. Another thing: you might get an inspection by the architect of the Town Hall that might detect illegal building… Therefor it´s always important that you´re lawyer is well informed, especially if you have (illegal) interior renovation plans.

Reforms -outside and inside- in the countryside

reforms countryside and DAFOOfficially houses in the countryside can´t be renovated -both outside and inside- and you can´t get a building license. You can´t construct a new swimming pool or terrace. This is illegal and easily detectable by air photos.

On the other hand, a lot of owner do reforms, even on big scale. A part of these people surely aren´t unaware of the risks. Or they listen to the real estate agent that wants to sell and this these risks are negligible, especially inside. But in the end no-one can guarantee how big these risks indeed are. The Junta de Andalucia checks with drones and also the Police can oblige the Town Hall to start a sanction procedure. This for example after complaints from the neighbours, so this also applies to interior reforms.

Reform within DAFO (hygiene, safety and livability)

In the end you of course need to decide for yourself if you want to take the risks or not (see below ´Sanctions and fines illegal buildings´). Nowadays however it´s also possible to obtain a building license for small reforms within the DAFO. These then need to comply with the criteria of hygiene, safety and livability and these depend on the interpretation of the concerning Town Hall. Think about window for escape routes, broken tiles that cause danger of tripping, oxidated water pipes, repairing leaking roof, etc. If you want to renovate a whole kitchen or bathroom, then ask your lawyer if he can discuss the options verbally and in advance with the Town Hall architect.

(Mobile) swimming pools and albercas

It´s permitted to cover an existing terrace with a flexible shadow construction or roof and frames with removable windows often isn´t a problem either. But even about a new mobile swimming pool completely above ground you could get fuzz. They really need to be fully removable without cement or screws and can´t have tiling around.

Many existing pools are registered as ´alberca´ which really is a rustic agricultural water reservoir. This isn´t a problem, but just don´t go enlarging it or paint it blue all of the sudden. These changes of course are easy detectable on air photos.

Sanctions & fines illegal buildings

The fine or financial sanction over illegal buildings are 70% of the new build worth plus obliged demolition. Besides from this, with an open legal case you can´t get a DAFO until the case has expired. This of course limits potential future sale opportunities. Besides of this you´ll probably need a lawyer which leads to further costs. If you don´t act on the official warnings of the Town Hall to stop the construction works, it could even become a real criminal case.

On the other site it it´s almost never the case either that in Andalusia complete houses are demolished. The Town Hall doesn´t have any interest in this and lets court rulings simply expire without acting on it. If they initially have provides a illegal building license or even a First Occupation License, they are even financially responsible, because then it´s a case of ´buying in good faith´ (buena fé).

Infrastructure and service facilities

Especially for properties in the countryside there are often irregular situations in infrastructure. Think for example about:

  • Septic tank (obliged within the DAFO) instead of a ´pozo negro´ (dumping waste water in the ground…)
  • Solar panels (in some towns a requirement for the DAFO)
  • Stock in community of water (Agua de Regantes)
  • Water wells (pozo; these have 2 different types of permits)
  • Secondary/emergency deposits with neighbours
  • Communal maintenance roads

Ask your agent or the seller how phone, internet and TV are arranged and have the reception checked if necessary.

Referrals & references real estate agent & lawyer:

Need a referral for a good estate agent in Andalusia? Or like to to receive an example offer for the legal investigation of a specialised and independent lawyer? Find out more through link above. 

©2019, Ariane van Wijk