This is an issue that will affect many people. In particular, those who once built a house in violation of the law and the administrative power to force its regularisation or demolition expired. The question is whether the protection gained with the expiry of that administrative procedure will also apply to new construction on the property, or whether the administration can take advantage of this new illegal act to reopen the demolition file.
This is something that is not at all far-fetched and which would not be the first time a local council has tried to do so.
This is the issue addressed in the recent Supreme Court judgment 170/2024 dated 17/01/2024 (Case No:3642/2022), which finally gives the final answer and closes this chapter, on which the Supreme Court has ruled several times.
In summary: “the expiry of the four-year period from the completion of the works without a licence or in violation of town planning regulations prohibits the Town Council from taking measures to re-establish the urban planning legality provided for in Article 184(3) TRLS, but confers no powers on its owner other than those inherent in maintaining the situation created, i.e. to oppose any attempt to demolish the building or to deprive it of the actual use it enjoys, provided that such use is not contrary to what is permitted in the zoning plan for the area in question.”
It is clear that the legally reprehensible conduct of the owner when carrying out unauthorised works on a building that is in an illegal situation is a clear violation of the legal regime to which that building is subject, which may imply, where appropriate, the initiation of a sanctioning procedure and the reestablishment of the urban planning legality violated by the new works carried out. However, it cannot be concluded from this that the owners have tacitly waived the benefit of the jurisdiction acquired by prescription, nor the loss of the prescription acquired by the expiry of the time limit for bringing the action to restore the altered physical condition, because his actions not only do not show a will to waive the benefit of the jurisdiction acquired by prescription, but the opposite.”
Therefore, in the interest of real and effective legal certainty, a principle linked to the institution of prescription, the government cannot reopen the time limit “to exercise an already time-barred legal claim precisely because the time limit for its exercise has expired, with no justification other than the owner’s performance of a new illegal act; a justification that is not comparable to an explicit or tacit waiver of the powers acquired by prescription.”
Conclusions
The foregoing leads us to conclude that the expiry of the period provided for in the regulations for the exercise of the action to restore urban planning legality with regard to constructions without a licence or in violation of the zoning plan has the following consequences:
- The administration cannot take measures to re-establish urban planning legality, but it does not grant the owner any powers other than those inherent in maintaining the situation created (similar to the illegal situation), namely to oppose any attempt to demolish the structure or deprive it of the actual use it enjoys, provided that such use does not violate what is allowed in the urban development plan for the area in question;
- Only minor repairs required for hygiene, ornamentation, conservation of the building and works aimed at maintaining safety conditions will be authorised, with no consolidation works, increase in volume, modernisation or increase in expropriation value being possible.
- Carrying out unauthorised work on buildings that are in an illegal situation constitutes a clear breach of the legal regime granted to these buildings and, evidently, the new work carried out due to its illegality can be prosecuted through the urban planning enforcement powers of the competent authorities. However, it cannot be directly and automatically inferred from this that the limitation period for the rights acquired by their owners is waived, nor the loss of the limitation period acquired by the expiry of the period for bringing the action to restore the altered physical condition.
Thus, the Supreme Court gave the final hammer blow to the nail that seals the coffin of the administration’s attempts to make use of illegal construction work on illegal dwellings to reopen the entire file and demolish the entire property: “Carrying out work that goes beyond mere preservation, ornament, safety or livability of buildings that are in an illegal situation does not inevitably mean the loss of the limitation period obtained, because the claim for restoration of urban planning legality is time-barred.”
Rafael Montes Velástegui