What happens when illegal construction work is carried out? How long does the Administration have to urge the legalization and/or demolition of the works? If the Administration’s action to exercise the restoration action has expired and what could be called out-of-zoning works and new constructions are carried out in these works, what happens with the already «consolidated» works?
There are many questions and answers that can arise in terms of urban law in this regard. While general guidelines can be established, we always recommend legal advice in the matter as both restoration and associated penalties can be very high. It is worth mentioning the following:
1. Normally, the Autonomous Communities are responsible for establishing urban planning regulations that regulate the expiry and prescription in relation to the execution of works that contravene urban legality. In Andalusia, we have the LIST as the main regulatory framework.
2. The recognition of the assimilated to out-of-zoning situation does not imply a «legalization» of the works, but rather that the Administration cannot urge the demolition. And then, the interested party can in principle keep and maintain these works, but without making modifications or expansions.
3. Not all works can be recognized as assimilated to out-of-zoning, there are limits that would mean that the Administration could always urge their legalization and/or demolition. For example, if a construction is carried out invading public land.
Having said that, it was common to question whether in the face of «illegal» works that had gained the possibility of requesting recognition of the assimilated to out-of-zoning situation or AFO due to the passage of time, that factually acquired situation would be lost if the interested owner proceeded to expand the works.
By the Town Councils, it was usually argued that by making a modification of the original works, the factually gained situation was invalidated, thus invalidating the acquired Assimilated to Out of Order situation (or its possibility).
Well, in a recent Judgment, the STS 170/2024 – ECLI:ES:TS:2024:170, the Supreme Court has indicated that the acquired situation; that is, the expiration of the restoration action by the Administration is not lost.
However, regarding these new works, the Administration may urge their legalization and/or demolition. Regarding the previous works, only maintenance or conservation works would be possible.
In this regard, the Supreme Court reminds us:
As this Court has declared in judgments of February
15, 1999 (appeal No. 371/1993) and April 3, 2000 (appeal No. 6192/1994), «what is built without a license and against urban planning regulations can be considered as out of zoning, in the sense that it does not comply with urban planning regulations, but it differs from the case provided for in article 60.1 of the TRLS in that the works were already illegal at the very moment they were being carried out, so the lapse of four years from the execution of the works without a license or contrary to the planning prevents the City Council from taking measures to restore urban legality provided for in article 184.3 of the TRLS, but it does not grant the owner of the works other faculties than those inherent in maintaining the situation created, that is the power to oppose any attempt to demolish what has been built or to deprive it of the use that is actually being enjoyed, as long as this use does not oppose that permitted by the plan for the area in question.».
And regarding the permitted works in a situation assimilable to out of zoning:
In this sense, our jurisprudential doctrine, which we reaffirm, has specified that in buildings subject to this regime, works of consolidation, volume increase, modernization or increase in their expropriation value are not possible, not even if they are required by the provisions applicable to the activity carried out in them (STS of April 29, 2002, appeal No. 4065/1998). Only small repairs necessary for hygiene, ornamentation, building maintenance, and works essential to ensure the safety of the building users will be possible, for example, increasing the width of the evacuation staircase (Judgment of March 23, 1999, appeal No. 1294/1993) or improving fire protection systems (Judgment of December 11, 1998, appeal No. 8402/1992).
Therefore, the uses or activities intended in buildings that are in a situation assimilable to out of zoning, in addition to not opposing those permitted by the planning for the area in question, require that they do not require works that exceed those strictly authorizable (small repairs necessary for hygiene, ornamentation, building maintenance, and works aimed at maintaining safety conditions).
Finally, it establishes that:
In short, the legal consequence of the expiration of the restoration action of
the urban legality is nothing more than recognizing the owner of the work with the power to maintain the situation created, that is, to oppose any attempt to demolish what has been built, as well as the limited possibility of carrying out works that do not exceed those strictly authorizable (again, small repairs necessary for hygiene, ornamentation, building maintenance, and works aimed at maintaining safety conditions).
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