In the urban planning field, it is essential to understand the licenses and authorizations required for construction, building, subdivision and land use, both in urban and rural land.
Any action in this sense requires, in general terms, a municipal urban planning license. The absence of this license or its non-compliance may give rise to two different types of proceedings: the procedure for the reestablishment of legality and the sanctioning procedure. Although both procedures are handled in a coordinated manner, they serve different functions and can have important consequences for property owners and buyers.
What is the Reinstatement of Legality Procedure?
The reestablishment of legality procedure aims to restore the physical and legal situation that was altered by an illegal urban development action. Unlike sanctions, which seek to penalize the offender, the restoration of legality focuses on reversing unauthorized changes. The measures may include the prohibition to continue with a construction, the cessation of supplies, the dismantling of infrastructures and even the total or partial demolition of the building.
In this case, the aim is not to punish, but to restore urban order. These actions are applied when the constructions or modifications are not legalizable under any circumstances.
What is the Sanctioning Procedure?
On the other hand, the sanctioning procedure has a repressive function and seeks to punish those who have committed an urban planning infringement. Sanctions may include financial fines or other restrictions, and their purpose is to deter future non-compliance with urban planning regulations. This procedure is applied in parallel to the procedure for the reestablishment of legality and, although evidence and testimonies can be exchanged between the two proceedings, they have different purposes.
It is important to note that the sanctioning procedure does not eliminate the obligation to restore legality. This means that the same infringement may give rise to a financial penalty and, at the same time, to an order to restore the altered physical situation.
How does this affect the buyer?
When purchasing a property, it is crucial to understand the obligations and associated risks, especially with regard to possible urban planning violations. According to the State Land Law, purchasers of a home or land assume the unfulfilled land rights and duties of the previous owner. This implies that, although the buyer is not liable for previous infringements, he does inherit the obligations to restore legality if there are illegal acts on the property, such as unauthorized modifications.
However, as far as penalties are concerned, the buyer is not liable for the urbanistic infractions committed by the previous owner, since these are personal in nature and fall exclusively on the person who committed them.
Therefore, before formalizing the purchase, it is highly advisable to carry out an exhaustive analysis of the urban situation of the property. This will allow to identify possible problems of legality that, in many cases, are not reflected in the simple note of the Registry of the Property, where only the mortgage charges or embargoes appear.
Final Recommendation
It’s essential for buyers to take proper advice and carry out a prior urban planning analysis of the property in order to avoid unpleasant surprises. This ensures that the investment will be made with full knowledge of the obligations that are being acquired and minimizes the legal and economic risks that may arise from unresolved urban planning infractions.
José Luis Espejo Vergara
Urban and Environmental Lawyer
