Important analysis

After the request by SOHA.ES committee at the AGM, we have had some response from our members. We have now analysed the results and our conclusions can be seen below in text version or click here to include the charts and graphs as well.

 

 

1. Response

In total 82 of our members responded. In general the quality of answers seems to be good enough to draw conclusions for our priority setting. On our total current membership of 171 this means a response of 48%.

We must assume that members that are convinced they have a serious problem will have replied and we therefore can safely assume that those members that did not react do not have a specific problem that needs our attention.

2. Overview of replies

The overview of replies on the various questions is as follow:

The “yes” answers are colored in blue, but when a “yes” refers to a problem area, (such as in yes our house is on protected land) we have opted for a sort of orange.

Where houses are registered in the Registro de Propiedad, we have assumed that those were built with building permission when evaluating the replies.

3. Age profile

The age profile of the houses of our members looks as follows:

This implies that, except for one unfinished house, all houses of our members will be 4 years old during the course of 2012 and, unless action has already been initiated and unless they were built on protected land, will have passed the legal statute of limitations.

4. Built or bought

85% of our members were the first owners of their houses, the rest has bought an existing house. Of the first owners 55% were also the promotors, which means that 45% of the first owners bought their ready built house from a constructor or an estate agent. In total 53% of our members bought rather than built.

5. Qualification of the land

6% replied not to have built on SNU or not to be sure, but all except one declared also to be located outside the village. The misunderstanding may well be caused by the mention of urban land in the escrituras, whereas reality seems to be different. The one exception declared that land was SNU but would have been reclassified meanwhile as urban. Since this concerned “Los Romanos”, we can safely assume that, until the PGOU of Vinuela comes into force, will be classified as SNU.

The conclusion is that, as was to be expected, all of our members have houses on Suelo No Urbanizable.

6. Protected land

22% of respondents are on protected land and 17% is uncertain. The “uncertains” vary form probably not, to probably yes and include a few that did not reply this question.

Members who built on now protected land are spread over all municipalities, although Vinuela is most represented. The split between promoters and buyers on protected land is exactly 50/50. In the “uncertain” group two thirds bought the house, so one third were promotors that are still unsure about the qualification of their land, although most of these believe they are probably not on protected land. The buyers can probably pass the responsibility to their seller, although this will not solve their problem of legality of the house.

Of those who have confirmed or suspect to have their house on now protected land 87% have completed their house before October 2006 when the POTAX came into force (4 houses were completed after that date of which 2 are most likely not on protected land and one is a rebuild of an old finca), but no single one of these would be safe when the POTAX remains to overrule the period of 4 years of statute of limitations.

The above assumes that all protected land, on which houses of our members were built, became protected land by the POTAX. Further research must clarify to what extent previous laws and regulations apply. Particularly close to the Viñuela lake this might be the case.

7. Isolated or part of settlement

Almost 75% of respondents believe their house can be seen as part of a settlement, without any specific municipality dominating. This opens the way to regularize the fast majority via the PGOU’s, once the growth quota are lifted. The definition of 5 houses within a circle of 1 km, however, might not be seen as sufficient by all Ayuntamientos and via PGOU is probably the longest way to regularize. We should therefore make an effort to find other ways and leave the PGOU as means of last resort.

8. Legal procedures

Almost 40% of respondents mention that a procedure against their houses is in course or has been completed (21 Vinuela, 4 Alcaucin, 2 Competa and 1 each for Canillas de Aceituna, Sayalonga, Torrox and Velez-Malaga).

The “denuncias” are not limited to houses built on protected land, although the highest % of legal proceedings are found in this group:

SNU

Of the houses with procedures, built on SNU without special protection 95% would otherwise be beyond the statute of limitations. Only one house will have to wait until September 2012 to classify under this group. These houses would otherwise have classified as “asimilado de FdO”. The unsures have been added, since most will very likely be on SNU in view of the context of other replies.

From these houses built on SNU without special protection, 3 houses are under threat of demolition, in other cases the licence was revoked or the case has been dropped meanwhile. When only the building permission has been revoked, as final verdict, the worst consequence is that the house will be seen as built without permission, but it would still qualify under “asimilado FdO” like all (Spanish) houses that were built without licence. This would imply that over 80% built on SNU with procedures could apply for “asimilado FdO” and are most likely safe.

The 3 problem cases are in Alcaucin (2x) and in Vinuela, all built with licence and the 2 in Alcaucin are already properly registered in the Registro de Propiedad. The houses date back to 2005 and before.

Protected land

Of the houses built on protected land, with procedures against them, 80% are built before POTAX came into force, and 55% were built before the POTAX and are also registered in the Registro de Propiedad.

There is no mention of threats of demolition in this group, just revoking of building licenses.

The problem cases consist of 1 house completed in 2006/2007, bought not built, and 1 completed in October 2007.

9. Electricity and water connections

There are no problems with water connections. 9% report problems with electricity connection, covering 6 different municipalities. All houses with electricity problems, except one, are registered in the Registro de Propiedad and one even has a Licencia de Primera Occupación. Unfortunately 5 out of the total of 7 houses with electricity problems are either built on protected land or have a procedure against the house.

The problems consist of still running on builders electricity and being cut off (or fears of becoming cut off) by Sevillana. The temporary solutions, allowed for by the Decreto, could solve 2 of the 7 problems mentioned, but for the rest there is no other way forward for the time being than to reconnect after Sevillana has cut off the electricity and just hope it will not re-occur too frequently.

10. Registro and Licencia de Primera Occupación

A remarkable 79% of respondents have their hoses registered in the Registro de Propiedad and another 5% are unsure and most likely are not registered.

Of the properly registered houses 45% even have a Licencia de Primera Occupación (37% of our total membership members).

Only one house that is not registered claims to have a Licencia de Primera Occupación, which seems inconsistent.

From the houses that are not yet registered only half of them have a referencia catastral. Of this half, all except one house unfinished, are old enough to have expected that the procedure to be registered in the Cataster would have been completed.

Three unregistered houses have no building permission, two of which were bough rather than built.

Since the fact that such a high number of houses are already properly registered, is likely to become a cornerstone of SOHA.ES’s strategy, the Committee has requested that we further research 10 registrations and try to verify these. These 10 cases have been identified and further research will be started shortly.

11. Building permits

80% of respondents have a form of building permit and 2% are unsure, bit seems likely they can be included in the group that have a licence to build.

For the houses already registered in the Registro de Propiedad we have not explicitly asked whether they were in the possession of a building permit and have assumed that, where no specific reply was given, that such permit was in place.

Of the remaining 18% without building permission the majority were buyers rather than promotors, who must have relied on the comfort of their lawyers (or sellers) that all paperwork was or would rapidly be in order. In the “unsure” group even all were buyers.

Of those without building permission, 70% are registered, which implies some form of administrative approval. Of the 3 remaining houses, 2 were bought and not built by the current owners, leaves 1 case built without permission, on protected land completed just before the POTAX and with a procedure in course.

Based on the above, it is justified to state that 99% of our members have built with administrative approval or bought being ensured that all paper work was in order.

12. Conformity

10% of respondents state that their building is not in line with the building licence and another 4% is uncertain. 13% have not answered this question.

A 60% of houses that are probably not built according to their licences are already registered in the Registro de Propiedad and should therefore be relatively safe on this point, although there are two of them who have procedures against the property, one even in the form of a demolition order because the builder built more m2 than the licence allowed.

Out of the remaining 4 houses with deviations from their licenses, 3 have procedures running against them.

10. Water course and sewage

11% of respondents are close to a water course or are uncertain.
10% is connected to some form of public sewer system, although 1 also stated not to form part of a settlement. The rest have their own septic tank.

11. Conclusions

Registered Houses

The colors in the table represent the level of perceived risk. With 79% registered houses out of the total, of which 17% at high risk and 20% at medium risk, this is proposed to become a core focus point for SOHA.ES’s strategy.

a) Gain acceptance of proposal that all houses registered in Registro de Propiedad will be regarded as legal Fuera de Ordenación

Once registered, between notary and registrator a large number of facts have been verified such as administrative approval for the construction, fees paid to municipality, catastral details, IBI paid, statute of limitations no longer applies, no known legal procedures against the property and date of construction. When this procedure resulted in an entry in the Registro without reservations, the construction cannot by differentiated from legal and banks have given mortgages on that basis.

It will not automatically offer a solution for pending procedures, but those procedures that result only in the annulment of building permits will benefit. For the others, the fact that their house would now be considered as legal, will help greatly in the defense of their case.

Protected Land

None of our members, who built on now protected land, qualify for “asimilado” because none were completed over 4 years before the POTAX came into force.
When the statute of limitations is maintained on the 4 years that were applicable for the land qualification, as valid before the POTAX, it would solve a problem for 23% of our members. This figure includes those with procedures against them, assuming their cases will be dropped once this proposal is accepted. This seems a fair request and it is also questionable whether the Decreto is not against the law on this point.

b) Proposal to apply SNU statute of limitations to houses completed on protected land before the land was declared as such

The statute of limitations must have been intended for the authorities to take action. The declaration of becoming protection land is a new regulation that should not harm owners that, unknowingly and acting in good faith, apparently committed previous infractions.

Asimilado

The extent to which the status of illegal “Asimilado Fuera de Ordanción” can help our members becomes apparent from the following table:

Only 38% of our members could “benefit” from this new regulation, which might increase to 49% when the “unsures” are indeed built on SNU and to 51% in a few months’ time when the late builds have also passed the statute of limitations.

The problem remains that “asimilado” means that you declare your house as being illegal. This will undoubtedly reduce the value of the property and remains largely unfair when the original building had been approved by the qualified authorities.

Although we currently advice not to start any application for the status of “assimilado”. We would need to get comprehensive legal advice on what the risks will be in practice and what legal property protection is actually implied by this status.

Also we should continue to endeavor to obtain a better legal status, which we could substantiate by the fact that all of our members built their houses after receiving permission from the qualified authorities and after paying their dues to the Ayuntamientos:

c. Proposal to classify houses built on SNU, without special protection, built with administrative authorization as Fuero de Ordenación instead of asimilado.

The administrative authorization is at best an administrative error that should not be hold against citizens acting in good faith. Many house owners have been deceived by their sellers, estate agents and lawyers, but being deceived by the Government authorities is something else. Citizens have a right to a reliable Government, which fundamental right should be recognized.
It is only fair that those paying their dues and obtaining building permissions are treated differently from those who built their houses without any administrative authorization.

Waiving the statute of limitations, as defined for asimilado, is likely to be difficult but would be vital for those with procedures against them.

Procedures

We would need to have a better understanding on the exact nature of the various procedures and their status. When these procedures would only involve the annulment of licenses, their solution would be covered by the three SOHA.ES strategies defines above. Revoking a building licence gives solid proof that the house, at the time, was built with administrative authorization.

It is not believed we should at this time make a separate strategic issue out of the pending procedures, since we have meanwhile clearly understood that no politician will want to burn their fingers by interfering with cases in court. We should solve them indirectly by trying to take away the roots of the cases.

Problem cases

• There are 3 procedures with potential risk of demolition, 2 are registered and on SNU, of which one has a non-conformity issue. When the non-conformity case would have built without a licence the problem would never have occurred and the house would now have qualified for ”asimilado”. The non-registered one does not seem to pose an immediate risk. Seems solvable.

• There are two other non-conformity issues, not registered, with procedures that would otherwise have qualified for “asimilado”. Seems solvable.

• Two houses are built on SNU, one with a revoked licence and one registered, will have to wait only a few months more before they would classify as “asimilado”. Seems solvable.

• There is no solution yet for unfinished houses, although they could fall under the “administrative authorization” argument. The 1 case concerned is on SNU without special protection. May be difficult.

• Two houses were built on protected land after the POTAX, both with procedures. These form probably our biggest problem and will need to be studied individually.

Conclusion: there are 3 problem cases that need individual attention and cannot be solved by the three general lines of strategy developed above.

General amnesty

An apply for general amnesty is a line that will probably be followed by many other organisations of irregular houses. Indeed it seems extravagant that the immigrants (“sin papeles”) received a couple of year ago general amnesty and we, with papers remain condemned. The amnesties in Extremadura and Galicia were both for buildings form before their respective new land laws, which would not help us very much. It is therefore not considered to be a useful strategy for SOHA.ES.

Mortgages

Mortgages cannot be provided for houses with status “asimilado” or “Fuera de Ordenación”. This might become a serious handicap for those who need to sell and pinpoints even more directly to the illegal status of those houses, so that prices will come under pressure.

We should check whether this requirement is for Spanish banks only and, once the illegality issue has been improved, according to SOHA.ES’s objectives, see whether there is anything we can do to facilitate mortgages on the houses of our members