Our work as lawyers in Spain is most rewarding when clients come with seemingly impossible problems and we are able to solve them with reference to a new and fair law. This has been the case when people who purchased country properties many years ago have since found that in planning terms they were little more than farm buildings or cottages on a dirt track.
In many cases ‘owners’ have had buyers ready but were not able to produce the legal documentation and could not proceed, or, more often, the buyers backed out.
Realising that this was not the fault of the owners, more that of historical mistakes in the registration system, the Andalusian government passed Decreto 2/2012 to permit the regularisation of isolated residential properties located on land designated as rustic by issuing a certificate recognising these properties. This certificate is known as an AFO, DAFO or RAFO depending on the Town Hall and area. After the approval of the above Decree, all the different town halls have drawn up their own regulations for the issuing of this certificate and the tax to pay to obtain the certificate ranges from 2% to 6% of the cost of the build of the property.
After an official survey of the property is completed, an application is made to the Town Hall who, after investigation, may issue an administrative certificate stating the legal situation of the property as being “fuera de ordenación” , out of regulation or that the extensions or property were not anticipated in the Town Hall plan. This allows the owner to live without fear of demolition and to sell the property and pass on the ownership rights.
It is necessary to prove that no existing files for breaches of planning permission exist, prescription of any irregularities and that the property is not located in protected areas or liable to flooding. It is also necessary to prove that the buildings are habitable with adequate health conditions and to agree that no extension works will occur beyond the existing boundaries.
The AFO Certificate does not change the legal situation of the property, or add any extra rights to the existing ones. In fact once the certificate is issued, the owners can only maintain and conserve the property and cannot extend the property. What it does is to allow thousands of houses to leave a situation of legal limbo and be recognised as sufficiently legal to sell, making them more attractive to potential buyers and that has to be a positive aspect of the regulations being introduced in the Town Halls.
In practical terms the AFO can be obtained within a period of 6 weeks to 6 months depending on the town hall. If the AFO process is clear and it will be granted, then the costs of the AFO can be deducted from the purchase monies allowing a buyer to enter the property whist the AFO process completes.