Solicitors in the area - Page 3

Louise14 wrote on Thu Oct 22, 2020 7:30pm:

AFO –Asimilado Fuera de ordenación

I would agree that this is not an issue created by Mercedes or in my opinion any solicitor, as whilst this might appear to be a legal issue, an AFO is actually a requirement of a Town Hall to satisfy a law made by the Junta de Andalucía. The below is just my understanding of the situati...

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...on and a summary of different articles that I have read. A lot of this information may already be known to you and I apologise in advance if this is the case. My understanding could also be totally flawed by information that I am not aware of or a complete lack of understanding!

The Junta de Andalucía apparently made a law that all town halls must have a list of all properties and their legal status as per the Decree 2/2012, of January 10. These rules were brought in at least in part after a series of corruption scandals apparently unearthed within the Town Halls where they had illegally granting building permission on land that clearly should not be built on or was in protected areas. It is also to ensure that Properties have the correct installation of new septic tanks, permissions from road and river authorities in place and any other technical modifications to the property.

As a result of this Town Halls are now obliged to record which properties in their areas do have licenses and which don’t. Many regions have therefore brought in regulations governing properties built in rural areas either without a license from the Town Hall or built before such licenses were issued. This is apparently where the AFO comes in as an AFO will provide written confirmation by the town hall to the Junta de Andalucía in relation to the status of properties on rustic land in their area.

The amended Andalusia land regulations of 2012 say that a house built before 1975 and with its original building permit does not need an AFO,

However, they also grant power to the individual Town Halls to administrate their own urban planning. Town Halls should therefore have discretion in dealing with the actual situation of older properties, given the above if built before 1975, it could be argued that they do not need an AFO. The problem however may be if an owner wants to further renovate or extend such a property as they will then need a license to renovate which may be refused by a Town Hall if there is no Legal License for the original property? If a Town Hall insists on an AFO, then apparently it must be done. The cost of an AFO can also vary considerably from Town Hall to Town Hall.

An AFO basically means that although the construction of a property does not comply with the legal planning, the ability of  the Local Council to initiate legal proceedings to reinstate the legal order has elapsed (post 6 years) and therefore the property cannot be pulled down. Before applying for the AFO, a property owner must be sure that everything that has been built on their land has been in place for more than 6 years – this apparently even includes pergolas. The Town Hall will check on the overhead plans produced by the Junta de Andalucía to make sure this is the case and if something has not been in place for the requisite 6 years then the Town Hall may require it to be removed.

Therefore, an AFO is basically a certificate that confirms the legal status of the property as officially recognised “out of planning”. The AFO Certificate does not change the legal situation of a property. It is a legal recognition of the original illegal situation of the property with the advantage that the property can have access to the basic services

To obtain an AFO the services of an Architect are required which equals cost and therefore this responsibility passes to the current owner of the property to put the AFO in place and make its status legal. Whilst an AFO may not necessarily be legally required to buy or sell a property, (and I am not qualified to say either way) where it is not in place then problems / costs may arise in the future for any new owner as they no doubt would have to put an AFO in place at some point and at their cost (dependent upon the works required this could be quite expensive) in order for the Town Hall to comply with the law made by The Junta de Andalucía.  Future contracting of services and supplies (water and electricity) to the property may also be impacted without an AFO in place (where required) as utility companies apparently are requesting this AFO document when receiving an application for connection. In addition, town halls may also request to see an AFO certificate before giving approval for any future renovation works and issuing a renovation license.

Once an AFO certificate is granted, then there is a Declaración de Asimilado a Fuera de Ordenación (DAFO).

Therefore my understanding would be that the situation you have described of the Town Hall stating that building permission was refused for your external wall because you could not have an AFO due to the age of the house could potentially be that usually in order for a renovation license to be granted, the legal status of the property has to be in place and an AFO usually does this where there is no prior legal status, however if your property was built prior to 1975 then in line the amended Andalusia Land Regulations of 2012, your property should already have legal status and doesn’t require an AFO to rectify this therefore permission should have been granted (provided there was no other tangible objection).

The question therefore that may need to be asked of the Town Hall that if it is the case that the property predates 1975 and therefore does not require an AFO then surely it already has legal status in line with the amended Andalusia Land Regulations of 2012 and therefore this should not prevent permissions be granted for any further renovations / works that may be required. In addition, in the case of selling the property, again Is the legal status not already in place by default of being pre 1975 (I can only assume this from your statement that the Town Hall have said your property is too old) and therefore an AFO would not be required, which I am assuming is what the document that Mercedes obtained for you was for?

DaveinAlbox wrote on Fri Oct 23, 2020 9:27pm:

Hi Louise,

Great explanation. Our situation is slightly different as the property was built around 2004 without a license and the land became protected in 2007, apparently if 4 years had passed between the building of and the protection coming into force all would be well but this isn't the case. ...

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...then we could obtain an AFO

The extremely lovely vendors have been to their Town Hall and all they gave them was a certificate stating that no action had been taken on the property and there had been no urban infraction.

In my mind this does not protect us form action being taken at any point either by the regional or local authorities. We ae finding this situation so stressful as we dearly want the villa but cannot see how we can live with this threat day after day, never knowing if our villa could be flattened or even if we come to sell what the difficulties we will come up against.

A suggestion of an insurance against any action could be obtained but I doubt it covers every single angle the authorities may take. 

Louise14 wrote on Fri Oct 23, 2020 10:14pm:

Hi

I assume that as the property was built on the land in 2004, 16 years ago, the ability of  the Local Council to initiate legal proceedings to reinstate the legal order has elapsed (post 6 years) and therefore the property cannot be pulled down therefore I don’t think any action coul...

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...d be taken in the future (but don’t hold me to that as I am not a solicitor!) however if you wanted to do any further works or sell the property in the future then you will need the property to have legal status and if an AFO is required to establish this then you would become responsible for putting it in place and this can be costly.

Maybe as a starting point, (and forgive me if you have already tried any of these) could you ask can the sellers ask the Town Hall to;

1.  Explain what the legal status of the property currently is?

2.  Explain why if the property was built around 2004 without a license (who built it?) and the land only became protected in 2007, what happens for the interim 3 years, if you can only obtain an AFO is 4 years has elapsed between the two?

3.  If the property was built without license, what steps can be taken to now make it legal (has the Town Hall stated that an AFO is required?) as if  the ability of  the Local Council to initiate legal proceedings to reinstate the legal order has elapsed (post 6 years) and therefore the property cannot be pulled down, then to comply with the law made by the Junta de Andalucía, the Town Hall will have to include it on their plans for submission. How would the gap between the build and land protection then be handled?

4.  To explain what “no urban infraction has occurred” means in relation to legalising the property.

5.  Explain why the land was classified the as protected in 2007 and what impact this has on the property.

6.  Ask their solicitor to explain if they feel an AFO is not required to sell this property, how does a buyer overcome a lack of legal status which may impede them in any future works or selling on of the property, and what about the costs involved (maybe this is where an insurance policy would come in?)

Hope this helps

L

Louise14 wrote on Fri Oct 23, 2020 7:57pm:

Hi Jenni,

Is it possible to write to the Town Hall to ask them to provide a written explanation of the following;

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1. What was meant by the Town Hall when your application for permission to build an external wall was refused as there was no AFO and "your property is too old for an AFO" (is this because it was built pre 1975)?

2. If this is the case can they explain how they demonstrate your property is exempt from the AFO Requirement but has legal license and in their overarching plan and therefore compliant with the law made by the Junta de Andalucía.

3. Provide written evidence that your property does not need an AFO but already has legal license – what is the license reference for your property as detailed in their overarching urban plan (registered with the Land Registry and have the Escritura for the construction).

4. If this is the case, then why was permission for the external wall not granted but refused? (Surely their previous explanation would not be applicable if your property were exempt from the AFO requirement?)

By challenging this, you should obtain the answers you require, help with your sale (as some legality will have to be demonstrated), and protect any future buyer who may want to complete further works on the property. 

Take care

L

Jenni wrote on Sat Oct 24, 2020 10:31am:

Hi Louise,

Mercedes, did ask most of these questions at the time of the request for Planning Permission, and the same reply comes back time and time again, that as our property is over 200 years old, we cannot have an AFO. Therefore we cannot get Planning Permission, they then point out, that an AFO is not ...

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...needed to buy or sell a property, If the property is over 200 years old which mine is. They then say 'this is the law we can do nothing about it'. Mercedes concurs with this.

But the problem is now, that estate agents lawyers are insisting on an AFO, they will not accept the town hall or Mercedes word.!!!!.  So what I have done is told the estate agent to put their lawyer in touch with Mercedes and let them argue it out.

Thanks for your help have a nice weekend  Jenni

DaveinAlbox wrote on Fri Oct 23, 2020 10:44pm:

Many thanks for your comments, much appreciated.

The local Town Hall has said that an AFO will never be issued.

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Our solicitor has said:

In this case, the constructions were just 3 years old when the declaration of special protection took place so unfortunately, as the 4 years had not gone by, it is impossible to get an A.F.O. on the property.

The possible responsibility for town planning illegalities on especially protected land never gets cancelled even although many years have gone by so this is the reason why the vendors cannot obtain an A.F.O. for this property.

It is true as well that the vendors obtained years ago a certificate from the Town Hall saying that there was not a discipline file against this property. According to the law, they could have started a discipline file against the owners for this property because the responsibility cancellation period had not gone by although they did not do it and they just gave the certificate to the current owners.

In my personal opinion, if the Town Hall started a discipline file against this property in the future, this would go against their own actions but I want to clarify as well that this certificate does not legalise and it does not regularise the legal situation of the property.

Best

D

Louise14 wrote on Mon Oct 26, 2020 1:14pm:

Hi Jenni,

Yes apologies not trying to teach anyone how to suck eggs and I am sure Mercedes has asked all the relevant questions, just trying to help if I could.

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I understand that an administrative certificate stating the legal situation of the property is as being “fuera de ordenación”, out of regulation in the Town Hall plan, which I think is what Mercedes obtained for you and this allows the owner to live without fear of demolition and to sell the property and pass on the ownership rights, without an AFO. The situation thereafter, and in fact as I understand it, is that even with an AFO, once the certificate is issued, the owners can only maintain and conserve the property as is and cannot extend the property.

I hope you manage to get something sorted and wish you all the best.

L

Louise14 wrote on Mon Oct 26, 2020 1:21pm:

Hi,

Unfortunately I don't know a lot about Protected Zones in Spain, i.e. why or how they are created, what they are protecting and what is means for houses already built in such areas other than I think that the property cannot be changed in any way in the future? I have struggled to find out much o...

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...n the internet which is frustrating as the property we are looking to buy is also in a protected zone. If nothing else these exchanges have been helpful in alerting us to the potential complications and issues we might face and we are therefore now thinking very carefully as to whether we continue down this path..

I wish you luck in whatever you decide to do

L

Jenni wrote on Mon Oct 26, 2020 4:52pm:

Hi Louise,

I think you are very wise to have 2nd thoughts, I have been in Spain 12 years, and I have never lived in a place that changes the rules so much, (I have lived in the UK, Portugal, and Egypt) just when you think you have done everything required and ticked all the boxes they come up with yet anoth...

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...er money making scheme, and trying to understand the law is a nightmare, in any so called civilised country they do a translation into other european languages, but not Spain.

I wish you well with your purchase.

Kind REgards  Jenni

DaveinAlbox wrote on Mon Oct 26, 2020 10:24pm:

Hi Both,

Thank you for your valid and interesting comments. This is all so crazy as our vendors want to sell, we want to buy but neither of us can progress, all we need is some kind of paperwork assuring us that the property cannot be demolished at some later time and the vendors need the same otherwise t...

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...hey no chance ever of selling their property on.

Its just a nonsense that no one in authority can give an informed answer to either of us......

Thanks

D