With the Costa del Sol property market on the rebound, many owners have now chosen to maximize the return on their bricks and mortar investments and are actively listing their properties with –literally- hundreds of new (and old) real estate agencies.
The sequence is pretty well known: an owner approaches a real estate agency who, upon basic verification of the property paperwork, lists the property for a convened asking price.
Unfortunately but predictably, the long list of requirements set out in the famous Decree 218/2005 (necessary to put a property up for sale) is rarely met. Generally though, the information provided tends to satisfy all parties and safeguards agencies in case of unwanted inspectors turning up.
But what the Decree 218/2005 did not envisage is how to deal properties that are partly or insufficiently recorded with the land registry, a legal contingency that’s causing many deals to collapse where searches reveal those discrepancies.
In our experience, we have noted that many proprietors of detached dwellings, and occasionally town houses and semidetached units, actually own more square meters than they officially declare. In other words, there is an excess of built area which may not always be legal.
This may be due to unregistered extensions, guest houses, conservatories, porches, barbecues, terraces, walls, basements or pools, all of which have to be `normalized´ if one wishes to avoid losing a potential sale.
Currently, there are two possible scenarios: that the excess built area complies with existing regulations or that it does not. To find out, we always suggest hiring an architect or surveyor to measure up the property and compare it with the legal documentation and applicable laws and regulations. This way a vendor will be able to rectify potential inconsistencies that buyers will –nowadays- invariably detect, and object to, when carrying out searches.
Legalizing those improvements, extensions or alterations is then a matter of local laws and passing of time. If they conform to local (at times regional) laws, a retrospective planning application will suffice. But if they don’t and yet 6 years have passed since the erection of the offending construction, statute of limitations will make it immune to legal action, under certain circumstances.
The latter is case is known as they AFO (Asimilado a Fuera de Ordenacion), which is a legal term to designate those properties that while illegal, are tolerated by the Government because you can…legalize them.
More on AFO on our next column!