In 2012 the Junta de Andalucia approved a new law to regulate the situation of over 200.000 illegally built homes in the countryside. Therefore, since this moment most Andalusian Town Halls have introduced a procedure to apply for a special certificate with the name of DAFO (Declaracion Asimilado Fuera de Ordenación). It´s not a legal requirement to have it or to buy/sell with it, and -important- neither does it make the property legal, but this DAFO (or SAFO) certificate can give owners extra security in writing of the legal / administrative situation of the property.
This is why it´s more and more common that nowadays real estate agents and lawyers (that take care of the legal investigation for the property when buying) will recommend their client to have the procedure carried out. However, this depends on the details of each individual property and the circumstances of the buyers. The costs of the whole process can be severe, between € 5.000 to € 10.000 in total (depending on the town and the square meters). Often the vendor is willing to accept these extra expenses, but this in the end is a matter of negotiating. It´s advisable to already have an agreement about this subject within the initial price negotiation and to have it put in the reservation contract of the real estate agency.
Basic rules for homes in the countryside of Andalusia
Over the years many homes in Andalucia have been built either without a building licence from the Town Hall, with an incorrect building licence (for example for a barn or storage) or with an illegal building licence (not according to the rules of the central Andalusian government). Even though the Junta hasn´t acted against most of these houses, these should never have been built.
According to the Andalusian law it´s not allowed to:
- Build homes (unless it´s for professional agricultural or livestock-farming activities)
- Expend or remodel constructions, both outside and inside (you purchase what´s there and you´re not allowed to make any changes)
The only thing that is allowed, is making small repairs like fixing a leaking roof or rebuilding a damaged or collapsed wall. If for example the house would burn down, the Town Hall can´t give you an official license to rebuild the property. This is why it´s extremely important to have a good house insurance from the moment of purchase. Neither it´s allowed to put a tiled terrace or to install a pool, even though it´s above ground. Nowadays the authorities carry out checks and could take legal action against the owner.
Rural accommodation or B&B
It is permitted to construct with the purpose of opening a rural accommodation or B&B, but this project needs to be approved first by the Junta de Andalucia. It´s very difficult to get this permission and the procedure usually takes a long time, so it´s unlikely that a vendor is willing to delay the completion (signing the title deeds at the notary) for it.
Expiring time of acting against illegal building
Even though a building officially might be illegal, the authorities can´t legally act against it anymore after the expiring time of 6 years. In theory and in worst-case scenario ´acting against it´ could mean to have the property demolished. The expiring time is proven either by aerial photos or an architect´s report (Certificado de Antigüedad) where every part of the property is checked, including pool, terraces, garages, storages, etc.
Special protected land
If the property is in a special protected area and it´s not proven to be old enough, then the responsibility of the Town Hall unfortunately never expires. However, if you can proof that all buildings were already more than 6 years old in the time that the special protected started (until 2012 this used to be 4 years), then there´s no problem and you can even have a DAFO certificate. Just to be clear, it´s not recommendable to buy a home in a special protected area if the buildings aren´t old enough. Nevertheless, it´s not illegal to do so and some buyers are willing to accept the risk of future problems with the authorities in exchange for a (significant) lower purchase price.
The DAFO procedure can take several months of time depending on the Town Hall and the amount of applies. This is why in most purchases (where the vendor pays for the DAFO costs), the lawyer of the buyer normally retains an estimated amount for the DAFO during completion at the notary. Based on the real costs, afterward he then will return the rest of the money once the DAFO certificate has been issued and all bills are received.
If the owner of a house wants to have the DAFO certificate of the house then an architect needs to make a technical project and present it to the Town Hall. In this report he needs to proof the age of all constructions of the property, the official status (like area of special protection) plus the correct infrastructure of the house. The town hall will also check if there are no earlier or current legal cases against the property, because in this case it´s not possible to issue a DAFO certificate.
Through his report the architect also needs to prove that the infrastructure and service contracts (electricity, water, official water wells, etc.) of the house is according to the environmental regulations of the Town Hall. A special point of interest here is having an approved sceptic tank (including service contract for emptying it). As installing a new tank can cost several thousands of euros, this is an issue the lawyer should check in an early stage. Also, some Town Halls have special requirements like obliged solar panels.
Town Hall tax
Besides de costs of the architect and possible necessary changes in the infrastructure, there´s a tax to be paid to the Town Hall. It´s calculated over the square meters according to an official price index from the year in which it was constructed. Per Town Hall the tax percentage over this indexed price variates from 2.5 to 4.5%.
Inspection by Town Hall architect
During the DAFO-procedure, the Town Hall architect will normally check the property in person, outside and inside, to see if the plans of the architect contracted by the owner are according to the real, physic situation. This is important to keep in mind, because authorities will then have the actual situation registered and officially you´re not allowed to change anything in the exterior or interior. In case you do want to make changes, even though it´s not allowed, it´s better to do so before applying for the DAFO. In other words, in this case it might be better to not have the vendor arrange it for you, but to agree a price reduction instead of a price retention and then later apply for the DAFO yourself.
Legal investigation of the lawyer
If you buy a house in Spain or Andalucia it´s highly recommended to have a specialized lawyer carry out the legal investigation of the property. Especially in the countryside it´s quite normal that registrations in the Land Registry (Registro de la Propiedad) and Cadastre (Catastro) and mostly these can be fixed before signing the purchase deeds. This is not the job or responsibility of either the real estate agent nor the architect that takes care of applying for the DAFO nor the Spanish notary. If you buy without the guarantees of the legal investigation, the legal, administrative and fiscal problems can be huge and will surely cost you more that the fees of the lawyer in the first place.
Besides of this the lawyer will negotiate on your behalf about important conditions of the private purchase contract (where you pay the 10% down payment) and he can give you financial plus fiscal advice, for example arrange the application of a Spanish mortgage. Through the notarial Power of Attorney he can even sign the purchase deeds on behalf of the client and take care of registrations, service contracts, direct debits, tax payment, etc. Also he will advise you in most cases to sign a Spanish wills, especially if you´re becoming resident in Spain.
More information about the DAFO
Read everything you need to know about the DAFO certificate in countryside of Andalusia in the more extended article of law firm C&D Solicitors in Torrox Malaga.
Author: Gustavo Calero Monereo, C&D Solicitors, Malaga (Torrox/Nerja)