Mallorca – legalize illegally constructed buildings?

The number of illegally built properties in Mallorca is hard to estimate. One thing is certain: it is considerable. This also includes countless building parts or extensions that were not erected on the basis of a building permit. The legal fact that buildings that have existed for 8 years can achieve grandfathering is, first of all, a pleasant fact: however, only half the truth.

This is because such grandfathering does not exist with respect to the legality of a building under building law. Such legalization under building law will probably be able to be produced on the basis of the draft law indicated in the BOIB on 21.09.2013.

A distinction must therefore be made between the entry of the entire building in the land register on the basis of a grandfathering to be obtained and the now also possible legality under building law. In any case, grandfathering is not automatic but only if it can be sufficiently documented.

In order to obtain an entry in the property register by way of grandfathering, a notarial declaration of new construction, which alone can be recorded in the land register, must be notarized. Such a declaration of new construction can only be issued if it is proven that no construction proceedings have been initiated against the builder in the past 8 years. It must be presented by means of an appropriate negative certificate of the competent building authority. In addition, a certificate from an architect registered with a Chamber of Architects, the relevant municipality or the cadastre on the age of the property must be provided. This must also include an exact description of the building parts with measurements. In addition, objective evidence of the age of the building or part of the building must be provided. In this regard, not any arbitrary aerial photo can be submitted, but only appropriately approved evidence.
If the described evidence is provided with public faith – in a notarial declaration of new construction – it also contains a probative value sufficient for the Spanish legal area.

In this regard, a lawyer should be engaged to prepare and draft a notarial deed. Specialized law firms can also obtain all of the above evidence and the evidence that would otherwise be required to be submitted. The latter should then also ensure the payment of the mandatory notarization tax AJD in the amount of 1.2% of the construction value, so that the hitherto officially non-existent property can be registered in the land register and corresponding ownership can be established. Nowadays, a property cannot be sold without a complete entry in the land register. The completeness of a register entry is crucial for the smooth sale of a property.

Apart from this, legality under building law can be achieved. However, this is not mandatory. For this purpose, a legalization procedure must be carried out with the relevant municipality and a corresponding construction project must be submitted. Since within the first 12 months of the above-mentioned law’s validity, only 15% of the construction costs are to be paid as a legalization fee – then the corresponding fee is increased by 5% in each subsequent year.

Building law legality protects against the draconian penalties of the building authority. However, the declaration of new construction described above also protects against this. This only if it has been sufficiently documented and entered in the land register in the sense of actual grandfathering in accordance with the statutory provisions.

The author Joachim Süselbeck is a lawyer in the law firm RA LSA in Santa Ponsa on Mallorca, which specializes, among other things, in real estate law on Mallorca.