When is a new build finished?
After the LOUA (Ley de Ordenación Urbanística de Andalucía) came into force in 2002, the rules for building (new construction and remodelling) were redefined. Among other innovations – in contrast to the previous regulations – the suppliers (electric, water, gas and gasoil) were no longer allowed to approve contracts if an owner could not present formal acceptance or other legitimisation of the building to the municipality (Licencia de Primera Ocupación or AFO). This is intended to discourage illegal house builders from carrying out unauthorised construction work. Important to know: existing contracts with utilities are excluded from this regulation.
Now that the building has been completed with formal planning permission and the list of defects is getting shorter and shorter, what happens next? Until now, the acceptance process was a time-consuming act: an application had to be submitted to the relevant local authority, the architect from the building authority visited the property (in Marbella, it was often a year after the application was submitted!) There were consultations, additional requirements etc … all of this took years. Only after the Licencia de Primera Utilización (first occupancy licence) was granted could the corresponding entries be made in the land registry.
The Andalusian legislator has now simplified this very much (most recently with the Decreto – Ley 2/2020, del 09/03/2020): From this date, a ‘responsible declaration’ (Declaración responsable or DR) from the responsible architect is sufficient, which is submitted to the competent municipality together with the ‘Proyecto fin de obras’ (construction completion project) and other documents (valid building licence, energy certificate, declaration to the tax office, update of the cadastre from the topographer, etc.). The building is then deemed to have been formally accepted and the first occupancy licence (Licencia de Primera Utilización) granted. The building authority now has the right of cancellation for 6 months if there is a presumption of non-compliance with the building permit or if a complaint is received during the course of construction. Due to this regulation, many building authorities in Andalusia no longer inspect the built structure on site, but rely on the documents submitted by the architect / allow the deadline set by the legislator to expire.
However, the administrative process is not yet complete: Together with the DR, a declaración de obra nueva (declaration of new construction) is now drawn up at the notary and signed by the notary. Here, based on the architect’s declaration (Proyecto Final de obras visado – ‘final construction project’), the completed building is documented, stating the areas actually built. The updated cadastre is also attached to the new building declaration, as well as the ‘libro de edificio’ (building book). Everything relevant to the building site should be documented in this and handed over to the owner. The libro de edificio must contain: the as built plans, energy certificate, update of the cadastre, the acceptance certificates, material tests (as well as their material certificates), data of those involved in the construction (including subcontractors), as well as information on the maintenance and care of the building.
Once completed, the Declaración de obra nueva is sent to the land registry with a request to update the registration. The land registry offices are now required to make the entries only after detailed checks have been carried out
A declaración de obra nueva can also be drawn up for buildings under construction, such as apartment blocks: in this case, the notary draws up a declaración de obra ‘en obra’ (declaration of construction): this allows the property developer to sell the respective flats off plan shortly after the start of excavation work. With a declaración de obra en obra, the respective units to be built can also be financed at a bank (> building loan), and after completion the financing can be transferred to the buyer – if the buyer is interested.
Once completed, the declaración de obra en obra is replaced by a declaración de obra nueva at the notary, after which the registration procedure described above begins.
Even if it all makes a very bureaucratic impression: it is advisable to follow the steps, buildings without the necessary registrations are becoming increasingly difficult to sell, many lawyers advise against buying if the registrations have not been made 100%.
If you have any questions, please contact us.
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