In the last few days it’s been reported that the national Government is withdrawing its object to the DAFO permissions, after the Junta agreed that it would not apply to Ley de Costas affected properties.
If you want to buy a property in the countryside of Andalucía, there are rules and regulations to consider. For many years, the regional government (Junta de Andalucía) has prohibited new buildings or extensions, nor even any rebuilding or renovations, inside or outside, to older buildings. So, if you’re being offered one, or land to build one, you need to do your homework before taking the plunge.
Permission for new builds is difficult or even impossible to obtain outside urban areas. Minimum plot sizes, which vary in different localities; approved use, such as a working smallholding; not encroaching onto protected areas; availability of services, etc.
However, since the requirement for planning permissions came in in 1977, with houses before that automatically being accepted, many people have ignored them, through innocence, deception or arrogantly thinking the rules didn’t apply to them. So, houses have been built in rural Andalucía without the proper approval of the Junta de Andalucia, who are the regional planning authority. Apparently, at least 300,000 properties have been constructed in Andalucía without a valid license, by ignorant, naive or unscrupulous landowners assisted by equally guilty agents, politicians, architects, lawyers and builders, who have all colluded to build these properties.
Once discovered, and Google’s aerial photos enabled that to be done more easily from the mid 2000’s, these properties were declared illegal, and the utility companies, water, electricity and sewerage, prohibited from connecting them. The owners had no choice except to live ‘off grid’, with water and electricity ‘arrangements’, which can be fun on a warm summer’s evening (as long as you are away from the foul smelling cess pit), but for regular life, especially with children or ill-health, it just becomes more and more inconvenient and costly. Selling can also be difficult as the Notary or Title Registrar, though not commenting on the commercial correctness of a deal, may not process the sale as all the required papers aren’t there. But just because the property isn’t legal, it doesn’t stop the Council from charging local property taxes.
Realising the impossibility of this situation continuing, the Junta has approved various decrees over time to regulate this situation. For these to apply, rural properties should be 6 or more years old, as after that time the Junta cannot fine or get a legal order to demolish. This must be verified through a Certificado de Antiguedad, prepared by an architect with proof of the property existing for more than 6 years. Even with this ‘safety net’, the property cannot be altered in any way, not even a swimming pool on a 40ºC plus day, with maintenance only being strictly enforced.
Also, the property must not be in a protected area, such as a natural park, or within a special water catchment area. If it’s there, it’s much more difficult to get a licence to stay.
Assuming it’s not in one of those areas, the next stage is for the architect to apply for a DAFO (Declaración Asimilado Fuera de Ordenación). To obtain this, which will permit connection to formal services, sale of the property, and slightly more work upon it, the property must be shown to comply with modern building regulations, as much as practically possible. An architect will usually have to be employed to prepare the documents and give a certificate stating the property complies, and some towns have additional requirements for solar panels or a minimal number of planted trees. If public piped water supply, grid electricity or sewer connection are impossible because of distance, the private arrangements must be shown to be secure and adequate for hygienic occupation. Then the appropriate fees must be paid to the Ayuntamiento. It’s not cheap, but then if it was cheaper than having complied with things from the start, that wouldn’t be fair. The DAFO is nearly equivalent of a First Occupation Licence Licencia de Primera Ocupación/Cedula de Habitabilidad in a legitimate property.
If you want to offer the property as a holiday let, nowadays a seasonal rental licence is required, and one of the conditions is a Licencia or DAFO.
Always remember, that the Junta de Andalucía or the Ayuntamiento carries out checks on rural properties. Any new buildings or adaptions of DAFO buildings, except for approved works that can be shown to be to improve safety, liveability, or hygiene, will be penalised by fine or even demolition. Also, if there is an open legal case against the property, even if it’s more than 6 years old, it will not be possible to obtain a DAFO certificate until it is officially closed again. This is a problem if you need to sell in the meantime, as obtaining a DAFO is not guaranteed and it will always take months to get everything correctly submitted, and then for the Ayuntamiento departments to confirm that it complies and the final document to be issued.
With all these complications it’s always best, pre-acquisition, to get a specialist lawyer involved, and of course have a Building Survey carried out by Survey Spain, Chartered Surveyors. www.surveyspain.com .
This article is based on an original by C & D Solicitors https://www.cdsolicitors.com/ , published in February 2021, in Spanish Property Insight.
C & D Solicitors have prepared an information video on the subject of ‘Buying in the Countryside with the DAFO’. https://youtu.be/pEkQIoXHrj4