Legal, illegal, protected – Island council eliminates illegal construction

Already the name of the authority subordinated to the Island Council sounds martial “Agency for the Defence of the Territory”. The task of this authority is to check the legality of buildings on Mallorca, to punish legal violations – from fines to penalties to demolition orders. The agency makes ample use of this: in addition to considerable fines and penalties, in 2019 alone, the agency issued dozens of demolition orders and several hundred cases are still pending. Through these measures, both sellers and buyers of Mallorca real estate are strongly unsettled. On the seller’s side, a hitherto stunted sense of injustice is developing. For decades building sins were tolerated on Mallorca, they were a trivial offence, which mostly remained without consequences. Prospective buyers with the help of brokers and lawyers more and more intensively check the legality of a building before they buy it. Professional brokers usually do not even include illegal houses in their programme, before – if possible – the legality has been established or at least existing buildings are protected. So, it is time to deal with this question: When is a house legal, when is it illegal, when is it protected?

When is a house legal?

The answer is simple: a house is legal if it was built in accordance with the public-law building regulations applicable in the municipality concerned at the time of construction, (border distances, height, m² of the superstructure, m² of living space, type of use, etc.) on the basis of a building application, a subsequent building permit and a public-law building inspection. The newly built house is then entered in the land register on the basis of a new building declaration by the owner, whereby the owner must present the building acceptance certificate to the notary. The prospective buyer or the lawyer must – among other checks – clarify whether the actual building stock corresponds to the description in the land register and that no building infringement proceedings against the property are pending with the town hall.

When is a house illegal?

This is also very easy to answer: A house or parts of a house are illegal if they were built without a building permit and without acceptance. Actually, this is clear and not any different in Germany. Only – in Germany, illegal buildings are the exception, whereas in Spain they are widespread. The reasons are understandable: The costs and fees for building applications are very high in Spain, and if one could be relatively sure that a breach of building regulations would not be punished, one would gladly save these costs. As the size of the development also has an influence on the annual property tax, one also wanted to avoid it.

Is it possible to legalize a house afterwards? Possibly: If illegal buildings can be approved within the framework of the applicable building regulations (i.e. the above-mentioned criteria such as boundary distances, building volume, etc. have been met), a building application can be submitted subsequently and the building or the illegal part of the building can be approved retrospectively. In addition, however, a fine will be imposed for the building violation committed. But still: The original illegal construction is then legal.

When is an illegal house protected?

In urban zones (zonas urbanas), an illegally constructed building may be protected after eight years of the completion of construction. However, there are a number of conditions for this, the most important being that no building infringement proceedings are pending with the authorities. Such buildings or parts of buildings can then be entered in the land register with a so-called “Altbauerklärung” (declaration of old buildings). However, buildings that have been constructed in protected zones cannot be protected as existing buildings. To put it plainly: the protection of existing buildings is not a subsequent legalisation – the illegal building is still illegal, but it is protected against measures taken by the administration, in particular a demolition order. For rural areas (suelo rustico), the protection of existing buildings was abolished or restricted in 2017. For buildings erected on suelo rustico after 31.12.2017 there is basically no longer any protection of existing buildings. Only illegal buildings which have already existed for eight years on 31.12.2017 and for which no building infringement proceedings have been filed will still be protected. Example: An illegal house that has existed for only 7 years on 31.12.2017 will never be protected again.