It can come as no surprise to those familiar with real estate in Spain to know that a number of rural properties throughout the country, particularly in Andalusia, were built without planning permission. The issue of how best to deal with these properties has plagued the Spanish authorities as well as causing anxiety for buyers and sellers of Spanish property for many years.
In 2012 the Andalusian autonomous government, the Junta de Andalucía, legislated that steps would be taken to regulate the position. The law was updated in 2016 and in February 2017 the Junta de Andalucía announced the procedure for regulating the position in relation to the properties in question. The result is DAFO - “Declaración de Asimilado a Fuera de Ordenación” .
What is a DAFO?
A DAFO is a declaration issued in relation to properties built in Andalusia on rural land either without planning permission, or in contravention of the planning rules, to state that the property has been granted lawful status.
The properties are not fully legalised by the process, in that it will not be possible to obtain planning permission for works that are considered to increase the value of the property, such as an extension.
Where a property has a DAFO, the records will reflect that the property was built sufficiently long ago that no planning enforcement action can be commenced by the local authority. Owners of properties with a DAFO in place will be able to obtain planning permission to keep the property secure and habitable and they will be able to connect the property to the mains electricity and water supply.
Which properties are eligible for a DAFO?
The property must be located in Andalusia - similar regimes exist in the other autonomous communities of Spain, but DAFO relates only to Andalusia. Applicants will need to prove that the works in relation to the property were completed over six years ago. It will also be necessary to establish that there are no planning enforcement actions in place which are still enforceable in relation to the property. In addition, the DAFO will not be granted in relation to a property that is located on protected land.
How to apply for a DAFO
The application for a DAFO must be submitted to the relevant local authority. The application must describe the property in detail, identify the applicant, and contain a local architect’s certificate stating that the property complies with the local rules in relation to security and habitability.
There will also be a fee payable to the local authority to consider the application. An architect can assist with the preparation and submission of the documentation.
How does the DAFO affect sellers of property in Spain?
It is recommended that the DAFO is registered once obtained, as that will provide reassurance to potential buyers. You can go about this by signing a “declaración de obra nueva” (declaration of a new build) before a Notary in Spain in order then to update the property registry description in relation to the property. Tax must be paid at a rate of 1.5% of the declared increase in the value of the property. When the “declaración de obra nueva” is registered, the DAFO will be registered simultaneously.
Unfortunately, it will not be possible to register a “declaración de obra nueva” where the property was built without planning permission, unless a DAFO has been obtained previously. Hence, the costs can be relatively high.
How does the DAFO affect buyers of property in Spain?
If you are considering buying a rural property in Spain, you will naturally be cautious about planning issues. Many potential buyers have been warned to look out for properties with a DAFO and that is sensible advice.
A DAFO can be crucial, for example, where the property was built relatively recently, as the risk of planning enforcement action is higher for newer properties. The DAFO provides essential reassurance that no action will be taken, nor fines levied by the local authority, in relation to planning infringement. Similarly, a DAFO will mean that disconnected utilities can be reconnected.
Where the property was unlawfully built some time ago and it has utility supplies connected, the buyer may seek the reassurance of the DAFO. However, the seller may consider this redundant if no planning enforcement action has been taken to date, so that a buyer may need to make an application at his/her own expense.
It is also the case that a DAFO is not a panacea for all problems in relation to a property. The DAFO will not protect the buyer against more recent planning infringements, structural issues in relation to the property, or other potential problems specific to the location of the property.
Clearly, therefore, it is vital to consider the situation of each property on a case by case basis and for that it is essential to seek good quality, independent legal advice.
If you are buying a property in Spain you may find our pages on buying property in Spain to be of interest. You can find more information here.
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