|Consolidated rights of the owners
Juan Bertomeu , Friday, December 24, 2004
| It has never been explained to the owners of existing buildings that the Basic Law of the Spanish State on the subject of Right of Property protects absolutely the acquired rights that correspond to them.
And this is what we are going to try with the present article. Considering the complexity of the matter, at the end of the text we will incorporate a series of town-planning basic concepts.
The general rule is that the building rights are integrated into the assets of the homeholder only by the fulfillment of the duties of cession of land for public equipment, betterment and charges sharing-out and, finally, execution of the urban development.
This general rule has only one basic exception: the existing or positively prescribed buildings; in these cases, the consummate building rights are presumed by law – and therefore protected- integrated into the assets of the homeowner.
The legal basis of this exception is regulated in the FIFTH TRANSITORY DISPOSITION, first paragraph, contained in the Land Law Consolidation Act of 1992 (TRLS), that, in turn, is a literal transcription of the 6th Transitory Disposition of the Law 8/90, for the Reform of the Planning System Regime and Assessment of the Land.
This Law 8/90 established the gradual process of consolidation of rights; and to the object of this article, the principle that the application of the Average Use to the plots with existing buildings only can take place when the building is replaced.
That is to say, as long as the existing building is not destroyed, the Average Use or the Equidistribution of betterments and charges is not applicable.
The Judgment of the Constitutional Court 61/97 declared unconstitutional almost all the articles of the TRLS 1/92, because the Spanish Central Parliament had no jurisdiction on the Planning System, as this exclusive jurisdiction corresponds to the Autonomous Regions.
The sentence of the Constitutional Court mantained only those articles that affected the basic content of the right of urban property, which as it is a matter of Civil Law, its regulation corresponds - under exclusive jurisdiction - to the Central State.
This maintained the constitutionality of the article 41 and the Fifth Transitory Disposition, first paragraph, both contained in the Land Law Consolidation Act of 1992 (TRLS)
In accordance with the principle of the gradual acquisition of rights, article 41 had a very precise regulation on existing buildings. Article 41 was part of the basic content of the right of urban property, up to its repeal through the Law 6/98.
This Law 6/98, nevertheless, upheld the The Fifth Transitory Disposition, first paragraph, of the Land Law Consolidation Act of 1992 (TRLS). And today it continues in force, as basic content of the right of property.
The literal text of the Fifth Transitory Disposition is as follows: “EXISTING BUILDINGS. - EXISTING BUILDINGS on the coming into effect of the Law 8/1990, of July 25, SITUATED ON URBAN LAND OR DEVELOPMENT LAND, executed in conformity with the applicable town-planning, or regard from which does not proceed anymore to dictate measures to restore the town-planning legality that imply its demolition, WILL BE UNDERSTOOD INCORPORATED INTO THE PATRIMONY OF HIS HOLDER.”
“Incorporated into the patrimony –understood as assets- of his holder” means it has fulfilled all the town-planning duties, because it supposes having come at the end of town-planning process, or the legal presumption of having fulfilled them.
This legal rule neither distinguishes if the consolidated buildings are included or excluded in sectors or units of execution, nor distinguishes if they have been constructed under town·planning license (planning permit) or without, nor does it distinguish if the built-up surface is more than allowed by the planning regulations or not.
And it does not distinguish, in any case, if after the course of four years, on having determined the prescription - if it existed - of the town-planning infraction, it is a definitive limit against any administrative action against the consolidated buildings.
Therefore, the Fifth Transitory Disposition presumes that the above mentioned buildings had fulfilled all the phases (cession, equi-distribution and urban development execution) so it is directly protected by the Law.
Consequently, the Local Planning Authority is not empowered to affect the consolidated rights of the homeowners. In other words, the Fifth Transitory Disposition granted a sort of amnesty to the existing buildings constructed before July 25, 1990.
The owner who has consolidated the right of urban property, concreting the development rights in the existing building, CAN NOT BE FORCED TO PAY TOWN-PLANNING CHARGES (except those later indicated), NEITHER TO MAKE PROPORTIONAL CESSIONS FOR EQUIPMENT LAND, NOR TO CEDE 10 % OF HIS DEVELOPMENT/BUILDING RIGHTS TO THE TOWN HALL, NOR TO BE FORCED TO A SHARE-OUT OF BETTERMENTS AND CHARGES.
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