The statute of limitations for urban planning infringements and penalties in the Balearic Islands

Illeslex Abogados is a law firm specialised in urban planning and real estate law. In this article we are going to talk about a subject on which we receive numerous queries, namely the prescription of urban planning infringements and sanctions in the Balearic Islands.

The great demand to purchase properties and plots of land located on rural - and also urban - land in our islands, the great control by the Administration on the legality of what is built or done in our territory, especially by the Territorial Defence Agency, as well as the great legal limitations on building and uses, especially since the entry into force of the new Land Law of the Balearic Islands (LUIB), on 1 January 2018, has led to countless queries and concerns about the possible prescription of certain buildings, often being the key to deciding whether or not to buy a particular property, sell it or start a process of construction of a new building or a reform.

In this article we will outline the issue of the statute of limitations for unlawful building and use in a clear and schematic manner, without prejudice to the fact that, in practice, each case must be dealt with in a more independent, in-depth, specific and analytical manner.

In this way, the essential element from which we must start in order to know whether a urban planning infringement is time-barred or not will be to determine the date of completion of the act that has led to the urban planning infringement in question, with the burden of proving, justifying and accrediting it falling on the person administered (generally the promoter of the works), for example with a technical certificate from an architect, official aerial photographs (Estop for example), notarial deed, etc., in practice requiring reliable and decisive proof.

From here, we have two generic scenarios:

1.- Urbanistic acts or uses prior to 1 January 2018.

If the illegal urbanistic act and/or use was completely finished before 1 January 2018, the old Land Law of the Balearic Islands (LOUS) will be applied, which states that the serious urbanistic infringement prescribes after eight years from the date of the total completion of works (or uses), and after one year for minor infringements, from which time the Administration could no longer require the restoration of that construction or use (for example, we would avoid a hypothetical demolition of what was built illegally).

It is important to emphasise that the fact that the infringement is time-barred does not mean that the urban development act becomes legal, but rather that it will remain in a state of illegality or out of order -whose regime will be analysed in another article- or that, to a certain extent, it can be legalised.

There are exceptions to this general regime. There will be no statute of limitations for acts of:

- Urban development plots on rural land.

- Acts or uses prohibited on protected rural land and expressly prohibited by law.

- Acts or uses in public spaces of special interest, catalogued, gardens, etc.

Financial penalties, in the framework of this first section, would expire after 4 years in the case of serious and very serious penalties, and after one year in the case of minor penalties.

2.- Urban planning acts and uses after 1 January 2018

Unlawful urban planning acts and uses totally completed after 1 January 2018, regardless of whether they started before that date, will also be time-barred after 8 years for serious and very serious infringements, and after one year for infringements classified as minor, but

WILL NOT BE SUBJECT TO ANY STATUTE OF LIMITATIONS:

A.- Unlawful acts or uses on any type of rustic land, including general rustic land (SRG).

B.- And unlawful acts or uses that affect listed properties or areas or areas of special interest.

And the economic sanctions, in the framework of this first section, would expire after 4 years if they are serious and very serious, and after one year if they are minor.

Frequent practical case:

One of the practical queries we get from clients in this area is the following:

If illegal works on general rural land were completed, for example, on 01.04.2013, and the new LUIB came into force on 01.01.2018, when would the statute of limitations expire? The answer would be 01.04.2021, the fact that the new Law came into force on 01.01.2018 being irrelevant. However, we insist, it will be necessary to have very well accredited the effective and total termination of these illegal works or uses.

If you have any doubts or queries, our team at Illeslex Abogados is at your disposal.

Feliu Martorell
Illeslex Abogados