LISTA reaffirms the provisions of Decree-Law 3/2019, stating that homes built on rustic land prior to 1975 are subject to the same regulations as buildings constructed with a valid license, making them legally recognized.
Moreover, the implementation of LISTA has been supplemented by its Regulation, RGLISTA, sanctioned by Decree 550/2022 and effective since December 22, 2022.
Andalusian Land Law: LISTA
The Andalusian Land Law, known as LISTA, was passed in December 2021, introducing a significant change allowing the construction of detached single-family homes on rustic land.
This marks a notable departure from the previous legislation (LOUA), which prohibited such actions.
This classification mirrors that established by Spain’s land legislation, Royal Legislative Decree 7/2015, of October 30, which approved the consolidated text of the Land and Urban Rehabilitation Law.
Moreover, the distinction between consolidated and non-consolidated urban land is removed, and land situations subject to urban transformation operations are introduced in both urban and rustic areas.
Regulations for Urban Land
For urban land, LISTA outlines urban transformation measures for urban improvement and interior renovation, aiming to address policies for the regeneration and enhancement of existing cities rather than the creation of new land developments.
The law integrates provisions that offer increased flexibility for such actions, crucial in existing urban areas, by eliminating legal barriers that previously impeded their technical and economic feasibility.
Under these new provisions, New Urban has expertise in initiatives enabling new uses like commercial or tourist activities on vacant plots previously restricted by legal limitations. Your case will be examined by an urban planning specialist lawyer and architect, Francisco Criado Rodríguez, renowned for extensive experience in urban planning procedures.
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The law’s determinations facilitate changes in land and building uses to enhance their development potential and value, requiring compensation in real estate or financial assets to the administration.
Regulations for Rustic Land
LISTA introduces a classification of rustic land into four distinct categories: specially protected rustic land under sectoral legislation, preserved rustic land due to documented natural processes or anthropic activities capable of generating risks, preserved rustic land under territorial or urban planning, and common rustic land.
Understanding this classification is vital, as per the provisions of the First Transitional Provision of the LISTA law, which mandates its immediate and comprehensive application. Rustic lands across Andalusian municipalities will fall into one of these categories, a determination to be made by the respective Town Councils for each case situated on rustic land.
A notable innovation brought forth by LISTA is the identification of rustic land preserved due to risks, where documented natural processes or human activities capable of posing risks are present. Such lands are deemed incompatible for transformation through urbanization as long as these risks persist.
This newly introduced category underscores the importance of not only considering urbanistic aspects but also environmental factors, such as flood risks and erosion risks, which may impede development.
Additionally, existing buildings may require legalization or be deemed assimilated as out of order.
LISTA further distinguishes between ordinary and extraordinary actions permissible on rustic land:
- Ordinary actions encompass rational resource exploitation (agricultural, mining, renewable energies), residential constructions essential for typical land use, necessary infrastructures, and interventions in Disseminated Rustic Habitats (HDR).
- Extraordinary actions target the establishment and expansion of facilities, industrial or commercial ventures, and other developments, necessitating the implementation of related infrastructure and services.
LISTA also introduces the possibility of developing isolated single-family residences, provided they do not engender new settlements or disrupt regular land use patterns.
Another notable aspect of Law 7/2021 is the provision ensuring the non-prescription of legality protection in rustic land. Under previous legislation (LOUA), unauthorized constructions in protected rustic areas did not lapse, unlike LISTA, where certain unauthorized activities in designated protected lands may prescribe, albeit not in public domains, areas at risk, or locations within the scope of the General Catalog of Historical Heritage of Andalusia.
Furthermore, LISTA includes provisions in its First Transitional Provision to prevent retroactive application to the detriment of alleged offenders, aligning with constitutional principles not previously addressed in legislation like Decree 2/2012.
Advantages and Disadvantages of the LISTA Law
The LISTA law introduces several noteworthy changes, particularly in the realm of property regulations. One significant alteration is the provision for the prescription of restoration actions in specific protected areas. This facilitates the acquisition of the Declaration of Assimilated to Outside of Ordination (DAFO) for certain structures, which was previously unattainable under the LOUA.
Another noteworthy aspect is the newfound opportunity to erect detached single-family residences in rustic terrain. This option, however, comes with stringent requirements regarding minimum plot size and proximity constraints, significantly limiting potential locations.
Transitioning to urban zones, the law introduces Urban Improvement actions, enabling enhanced buildability, increased residential capacity, or alterations in use or typology within designated urban plots. These initiatives are pivotal as they unlock the potential for development in vacant urban parcels constrained by existing urban planning stipulations or failing to meet local demographic needs adequately.
Additionally, a notable innovation lies in the establishment of certifying urban entities poised to collaborate with governmental bodies during licensing procedures. Their role involves scrutinizing project proposals and technical documentation to ensure alignment with pertinent technical standards, urban bylaws, and planning regulations. Furthermore, they will assess the conformity of construction works with the granted license or submitted declarations. This pioneering initiative, as outlined in Article 9.5 of the LISTA, empowers individuals or stakeholders to include the certifying urban entity’s assessment in administrative records, thereby influencing procedural outcomes. This collaborative approach enhances efficiency in decision-making processes while upholding administrative oversight.
On a less favourable note, one aspect of the law warrants scrutiny: the potential formation of new settlements arising from activities in rustic areas. This means that all endeavours, including routine agricultural, livestock, forestry, hunting, mining, hydraulic, and renewable energy activities, must adhere to the stringent conditions outlined in the regulation of the Law, as per Decree 550/2022. These conditions mandate strict compliance with objective criteria to prevent the unintended development of settlements.
Consequently, this set of regulations has outlined specific criteria for evaluating actions that may potentially lead to the establishment of settlements. However, it fails to distinguish between the types of actions—be they ordinary, extraordinary, etc.—and lacks detailed specifications for each municipality. This departure from the directives outlined in LISTA, as per its article 20.b, is notable.
The conditions to prevent the formation of new settlements will be established by regulation, taking into account the characteristics of the municipalities, their plot structure, and the existence of irregular building groups, as well as the occupancy parameters, plot, and any other parameter considered necessary to guarantee the preservation of the characteristics of rustic land.
The advancements brought forth by LISTA have facilitated the acquisition of Declarations of Assimilated to Out of Order for residences situated in protected territories for our clientele, a feat previously unattainable under LOUA. Additionally, it has enabled the sanctioning of urban enhancement initiatives permitting the alteration of land usage on urban plots, the development of which was previously deemed infeasible, such as transitioning from sports to commercial purposes.
Land uses linked to renewable energies
In the realm of renewable energies, the LISTA introduces various novelties, notably considering the implementation of renewable energies in rustic land as ordinary actions, thereby requiring municipal licensing for authorization.
Additionally, the law specifies that works in existing buildings and installations within urban land designated for the installation of thermal energy utilization from renewable sources in residences, the installation of electric self-consumption using renewable energies up to 500 kW, and the installation of electric vehicle charging points will be processed through a responsible declaration. However, exceptions apply to buildings of historical-artistic significance categorized as cultural interest assets.
New Regulations for Building on Rustic Plots
The requirements governing the construction of a detached single-family home not associated with urban land, as prescribed by the LISTA law and its accompanying regulation, Decree 550/2022, include:
- Only one dwelling per parcel
- A minimum parcel size of 25,000 m2 (50,000 m2 in forested areas) capable of accommodating a circle with a 50-meter diameter.
- A minimum separation of 100 m from other residential structures.
- Prohibition of locating the dwelling within a 200 m radius circle where, including the proposed building, there are either six residential, industrial, or tertiary structures or ten structures of any purpose.
- Maximum building occupancy of 1% of the parcel area, with a minimum of 250m2.
- Maximum excavation (cut or fill) occupancy of 30% beyond that of the building.
- Preservation of the existing tree cover, topography, and natural terrain conditions in the remaining area, except when necessary for implementing ordinary actions.
- Maximum building height of 2 stories.
- A minimum distance of 25 m from the building to the plot boundaries.
- Provision of basic autonomous services for the dwelling, preferably through self-consumption installations using renewable energy sources, with the option for connection to existing nearby networks under exceptional circumstances.
- Construction outside flood-prone areas, with additional compliance with fire safety regulations for buildings on forested land.
- Prior approval of an Action Project before applying for municipal licensing.
- Obligation not to obstruct the customary uses of rustic land, requiring consultation with adjacent landowners during the authorization process.
- Commitment to apply for urban planning permission within one year of obtaining approval for the Action Project.
- Payment of a compensatory fee for rustic land, equivalent to 15% of the budget allocated for the physical execution of the proposed works.
Based on our experience, the law has established clear criteria for establishing detached single-family homes on rustic land, with particular attention paid to addressing concerns such as nearby building density within the 200 m radius circle and consulting neighboring landowners during the authorization phase.
Pre-Approval of an Action Project before Municipal Licensing.
As per article 22.3 of the LISTA, the erection of a detached single-family dwelling necessitates prior authorization from the municipality before the issuance of a license to qualify the land intended for establishment.
This documentation will delineate the proposed dwelling and primarily assess adherence to the aforementioned issues concerning the stimulation of new settlement formation.
Furthermore, in this documentation, the developer pledges to remit the compensatory fee on rustic land, per article 22.5 of the Law, which constitutes 15% of the budget earmarked for the physical execution of the proposed works.
Non-Obstruction of Regular Rustic Land Uses. Consultation with Adjacent Landowners during Authorization.
Article 22.2 of the Law stipulates that detached single-family residences in rustic land must not impede the execution of regular actions on adjacent plots, necessitating scrutiny during the Action Project, alongside consultation with neighbouring landowners.
This scrutiny must assess whether the residential use aligns with the ordinary activities on the neighbouring plots, thereby potentially ceasing ordinary operations post-authorization due to, for instance, health risks posed to residential occupants.
Minimum Plot Requirement of 25,000 m2 (50,000 m2 in forested areas) with a 50-meter diameter circle inscription.
In compliance with Article 31 of the LISTA Regulation, construction of a detached single-family residence in rustic land mandates a plot size of at least 25,000 m2, with no allowance for fragmented parcels.
However, the regulation fails to adhere to LISTA’s provisions, as the blanket requirement of a minimum 25,000 m2 plot across all municipalities in Andalusia lacks individualized assessment for each constituent municipality of the autonomous Andalusian community, as mandated by article 20 of the LISTA.
Thus, an analysis of the cadastral land registry in municipalities within the Axarquía region, including Arenas, Sedella, Salares, Canillas de Albaida, and Algarrobo, reveals that plots of rustic land exceeding 2.5 ha. constitute a mere 2.38% of the total, significantly impacting the potential construction of detached single-family residences in rustic land within this region.
Building permission with the LISTA law
In terms of authorizations for construction projects, the LISTA has incorporated and specified the provisions of the previous LOUA legislation regarding licenses and responsible declarations.
The Responsible Declaration is a document signed by an interested party, wherein they affirm, under their responsibility, compliance with the requirements set forth in the current regulations to obtain recognition of a right or privilege or for its exercise. They confirm possession of the documentation to substantiate this compliance, undertake to provide it to the administration upon request and commit to maintaining adherence to these obligations throughout the period inherent to said recognition or exercise. This allows them to commence construction upon submission of the aforementioned Responsible Declaration to the Municipal Authority.
Thus, the following actions fall under the purview of Responsible Declaration:
1. Execution of construction works of minor complexity and technical simplicity that do not necessitate a formal project as per prevailing legislation.
2. Works on existing buildings or installations compliant with territorial and urban planning or legally classified as non-compliant, situated in urban land unaffected by urban transformation projects, provided they do not alter occupancy or height parameters or result in increased buildability or dwelling numbers.
3. Works on existing buildings and installations conforming to territorial and urban planning or classified as non-compliant, located in rustic land, aimed at enhancing energy efficiency, incorporating renewable energy facilities, or reducing environmental impact, provided they do not entail new construction or expanded built-up areas.
4. Occupation or use of buildings or installations covered by prior licenses or responsible declarations for works, ensuring their completion and adherence to these conditions, and aligning their use with applicable regulations.
5. Occupation and utilization of existing buildings conforming to current planning or classified as non-compliant, situated in urban land without urban transformation projects, provided they have not undergone modifications.
6. Change of use in buildings, or parts thereof, complying with territorial and urban planning or classified as non-compliant, located in urban land without urban transformation projects, provided there is no increase in dwelling numbers and the intended use falls within the scope permitted by said planning.
All other actions require municipal licensing.
Looking for an Urban Lawyer in Andalusia?
At New Urban , we understand the challenges presented by urban planning in Spain. That’s why we always advise hiring the services of a lawyer and architect specializing in real estate law.
Prior checks on the urban situation of the property you wish to purchase are crucial in the buying process and should be carried out before signing the reservation contract. Rushing into signing should be avoided; the terms of the sale should be clearly outlined and refundable.
At New Urban , our real estate law experts will meticulously examine all property documentation to ensure its complete legality, allowing you to acquire it without any encumbrances.
During the property acquisition process in Spain, you may also require an architect to assess the physical condition of the property and identify any potential issues. In some cases, these issues may be significant enough to reconsider the purchase. Therefore, we recommend all our clients obtain a property report before signing the reservation contract.
Additionally, we suggest consulting with a local real estate agent to assist you in finding a property that meets your needs and financial plan.
The tax aspect of the purchase process is also paramount. If you plan to establish residency in Spain, carefully study and plan the tax implications of your move to Spain in advance, and consider how the sale or exploitation of your assets abroad may impact your finances. Note that in these cases, international double-taxation agreements apply.
For a secure and risk-free investment, it is essential to seek the assistance of professionals, including real estate agencies, lawyers, tax advisors, and architects, who will guide you through the entire purchasing process.
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FAQs
1. What is the maximum allowable construction on rustic land in Andalusia?
The permissible construction area is 25,000 m2 (50,000 m2 in forested areas), within which a circle with a diameter of 50 meters can be inscribed.
2. What type of dwelling can be erected on rustic land?
You can build a detached single-family home with a maximum height of two stories and occupying no more than 1% of the plot’s area.
3. What is the tallest structure one can build on rustic la
For residential buildings, the maximum height is two stories or 7 meters. However, for structures designated for storage or other purposes, it is subject to municipal regulations and intended use.
4. What land is suitable for a prefabricated home?
The requirements for prefabricated houses mirror those for detached single-family dwellings, necessitating a minimum plot size of 25,000 m2 (50,000 m2 in forested areas) where a circle with a diameter of 50 meters can be inscribed.
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