Derecho Inmobiliario y cuestiones Fiscales

A good question! Many things should be taken into account in order to answer this question, but the team of lawyers in Bufete Frau have sat down to present this articles in which we will show you what you need to know and how to obtain it. 1. REGULATION In the first place, we will always have to keep in mind the numerous different regulation in force. In this regulation the most important rules are:

  • Law 2/2014, 25th March, planning and use of land, In particular, the tenth temporary regulation
  • Law 6/1997, 8th July, rural land in the Balearic Islands
  • Law 1/1991m 30th January, natural areas and development system in the areas of special protection in the Balearic Islands
  • Law 8/99, 12th April, concerning power of responsability to the Island Boards of Menorca, Eivissa and Formentara in matters of Agriculture, Livestock, Fishing and Craftmanship
  • Law 16/1985, 25th June, Spanish Historical Patrimony
  • Law 12/2014, 9th July, agrarian of the Balearic Islands
  • Decree 17/2017, 21st April, exoneration of agricultural activity
  • Decree Law 1/2016, 12th January, urgent measures in planning matters
  • Territiorial Plan of Mallorca and Island Territorial Plan of Ibiza
  • General Plans of City Planning (PGOU) of each Town Hall, as well as the adaptation as well as its subsidiary rules

2. OUTLINE OF STUDY OF THE DOCUMENTS Of course each case is different, as each purchase/sale is also different and requires certain documents or others, but more or less we can point out the following:

  • Registry information
    • Previous ownership (purchase/sale, inheritance etc)
    • Simple note or •Registry details (Registry, nº property, volume, book &  page)
    • Information from the Real Estate Agency
    • Amounts of loans pending payment
  • Planning information
    • Building license (and that of reforms)
    • Approved plans of initial license (and that of reforms)
    • Basic project
    • Technical and Town Hall end of construction
    • Non planning infringement certificate from Town Hall and Consell Insular
    • Updated plans of the floors
    • Aerial photo
  • Surveying information
    • Geographical coordinates
    • Survey plan with possibles slopes of more than 20%
    • Plan showing rights of way
  • Land Registry information
    • Land registry reference or
    • Lot, plot and town
    • Registration in land registry office
  • Supplies
    • Valid housing certificate/Planning certificate
    • Latest bills of water, electricity, gas etc
    • Contracts with supply companies
    • Certificates of installations
    • Start up of water well
  • Others
    • Energy efficiency certificate
    • Coastal certificate, if applicable
    • Military permission, if applicable or exemption on being a municipality of national tourist interest
    • Ten year insurance, if applicable
    • Renouncement of preferential right in certain special areas

3. STUDY Once all this is clear and we have sufficient information, we can start with the study at all levels for the country home of our dreams, let’s start! 3.1. Basic study or pre-scan. In this section, we will revise the following basic aspects:

  • Initial study of the simple note, of the land registry information, as well as an initial planning study
  • Study of the aerial photos (IDEIB, ESTOP, SITYBSA)
    • Constructions before 1956: Are legal as they do not require a building license
    • Later constructions:  The building license is compulsory, the study will have to be continued
  • What type of land is it
    • ANEI or ARIP? If construction has taken place after 10th March 1991 legalization is not possible unless it has been legalized through the 10th Temporary Regulation of the L.O.U.S
    • SRG or others: Continuation of the study must take place

3.2. Study of the capacity of the land and its minimum surface

  • What does my Plot measure? The surfaces will have to be compared of that appearing in the Property Registry office and in the Land Registry office plus the information from the survey plan
  • Can I build a house? The essential requirement is that the surface, in Mallorca, is no less than:
    • 50.000 m2:
      • Rural Land under General Forest System (SRG-F)
      • Rural areas of Special Scenery (ARIP)
    • 14.000 m2:
      • General Rural Land (SRG)
      • Areas of Agricultural Interest (AIA)
      • Areas of Temporary Compatibility (AT-H)
  • Preferential right, amongst others:
    • Between neighbours, always exists when the capacity is less than 10.000 square meters (art. 1523 CC)
    • Between co-owners (art. 1522 CC)
    • In the rental contract, in favour of the tenant (art. 25 LAU)
    • In favour of the Govern in areas named as natural parks

In these cases, the renouncing of the owners of preferential Rights will be needed. 3.3. Study of previous ownership and simple note

  • With respect to the previous ownership:
  • With regards to the simple note: We must place special attention to the charges that there may be. We could find the following:
    • Mortgages or siezures: These must be cancelled, at the latest, on the same day as the granting of the public deed. For this will be needed a certificate from the corresponding entity with the balance owed.
    • Short term loan: This is a loan that arises when the builder has provided, for example, materials to his cost and which have not yet been paid. In this case, and as long as they are registered as a charge, these have the same effect as a mortgage.
    • Easements: When there is a right of way and our property is the serving premises, the ideal thing is to have a map where these Rights of way are indicated.
    • Out of planning order: In this link you will find further information
    • Does there exist any other limitation to the free disposal? For example, an insolvency proceedure, a preventive note of claim, a ban on disposal etc.
    • Tax charges: The property is subject during five years from the transfer to a possible revision of value by the Inland Revenue Office. This cannot be cancelled.

3.4. Study of its present state and comparison with authorized plans Does its present state coincide with the plans that were authorized by the Town Hall? To anwer this question, we would need to request that a competent technician assess everything and in particular seek that:

  • If the setbacks have been respected or not – If there exists or not a final building certificate from the Town Hall.
  • If there are elements that have been built without a license – If there are constructions that have been built differently to that initially approved or in a different place.

3.5. In terms of supplies… What do you think? Our aim, as Experts in Real Estate Law in Mallorca and the remainder of the Balearic Islands, is to provide you with security, confidence and openness. We wish you buy or sell a beautiful country house, but we want you to do this enjoying the process but feeling that you are protected at all times. We will work hard for you, in order that tomorrow you avoid any problems.

Bufete Frau
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