The law 5/2010 introduces few changes in articles 319 and 320 of the penal code that are regulating the crimes against urban and town planning. The articles are mostly unchanged except for an increase of the penalties. The objective of the changes is to harmonize Spanish laws with general EU laws but most importantly to increase the sanctions against perpetrators in order to curb the practice of illegal building (for example building houses in rural ground), that in few areas of Spain is reaching an alarming level.
Article 319 sanctions for illegal constructions
Article 319 is divided in 4 sections. Section 1 is specifying sanctions for promoters, builders or professionals involved in an illegal construction on protected areas (for example natural parks) or public land intended for green areas and avenues. The penalties are ranging from 18 months to 4 years of prison, additional fines from 12 to 24 months and professional disqualifications from one to 4 years. The pecuniary penalty will be 3 times the profit made out of the construction.
Section 2 is specifying sanctions for promoters, builders or professionals involved in an illegal construction on non-urbanised land (for example rural or agricultural land). The penalties are ranging from one to 3 years of prison, additional fines from 12 to 24 months and professional disqualifications from one to 4 years. The penalty will be 3 times the profit made out of the construction.
Section 3 is mentioning that in every case the judge or the tribunal could order as well the incriminated party to return the land to its previous state including ordering the demolition of the construction and the payment of damages and interests to third parties in good faith.
Section 4 is specifically examining the sanctions against “juridical persons” (entities like companies and organizations other than physical persons). The punishment will vary a lot ranging from purely financial to the complete dissolutions of the organisation. It might also include suspension of the activities for up to 5 years, disqualifications and in specific cases the incrimination for the management.
In the context of article 319 a promoter is anyone who decide, finance (with his own or other person funds) or plan the illegal construction. This could include a private person, a professional of the real estate industry, a company or an administration. The professionals are all the people involved in managing or giving assistance to the building operations. This will include as well architects and technical architects. The builders are of course the people that take care of the practical execution of the construction.
Article 320 Urban prevarication and lack of action.
Article 320 focus on the “prevaricación urbanistica”. Urban Prevarication is a crime where a public official (a major, a municipal architect or any other public administration functionary) authorize a project, grant a license, redefine plots or authorize constructions knowing that it goes against the regional territory planning. It is also considered prevarication when the public officials do not enforce the compulsory controls, put a blind eye on infractions happening on the areas belonging to their jurisdiction or fail to denounce illegal constructions when he is aware of their existence.
The sanctions against this type of crimes are ranging from 18 months to 4 years of prison and an additional fine from 12 to 24 months.
- For serious administrative infractions and unless the regional laws are stating otherwise, the prescription time is 4 years. There is no prescription time in green areas, protected areas or natural parks. In other words there is no time after which it will be possible to legalize the property. If you build a house illegally it might get demolished at any time, even several decades after the construction.
- If the construction was built before 1990, i.e. before the enforcement of the “Ley del Suelo 8/1990”, then it might have possibilities to be legalized. You should ask a Spanish lawyer to help you with the procedure that will require reports from architects.
Few pieces of advice
Always employ a lawyer for a sale/purchase, in order to check for debts, the legality of the transaction and that all the licences are in order, and if you have any suspicion related to the legality of your property (especially if built on rural land after 1990) then contact a Spanish lawyer specialised in property law as soon as possible.