The new Andalusian Land Law, LISTA, was approved in December 2021, with one of its major innovations being the possibility of building detached single-family homes on rustic land. This is a significant change from the previous Law (LOUA), where such actions were prohibited.
The new law confirms what was established by Decree-Law 3/2019 regarding the fact that homes located on rustic land completed before 1975 have the same regime as buildings constructed with a license and are therefore legal in all respects.
Furthermore, LISTA has been developed through its Regulation, RGLISTA, approved by Decree 550/2022, and has been in force since December 22, 2022.
LISTA, Law 7/2021, of December 1, is the new Andalusian land law that regulates acts of segregation, construction, building, works, installations, infrastructure, or use in rustic and urban land in Andalusia.
LISTA seeks to address the demands conveyed by citizens regarding the shortcomings of the previous LOUA law, such as the possibility of building homes in rustic areas without the need for agricultural exploitation.
Additionally, it incorporates new provisions to further promote the concept of sustainability in the territorial and urban model of Andalusia and to integrate the guidelines of the European Landscape Convention assumed by the Autonomous Community in the Landscape Strategy of Andalusia approved by agreement of the Government Council on March 6, 2012.
Sustainable development is the core concept of environmental law in our time, and the Sustainable Development Goals, outlined in the United Nations’ 2030 Agenda for Sustainable Development, particularly goals 11 and 13, which have a significant impact on urban planning and land management.
The new regulation advocates for inclusive, safe, resilient, and sustainable cities through urban regeneration and rehabilitation, as well as by implementing measures to mitigate the risks posed by climate change.
The law embraces the objectives of the 2015 Paris Agreement on Climate Change, as well as the requirements established by Law 8/2018, of October 8, on measures against climate change and towards a new energy model in Andalusia for territorial and urban planning instruments.
Furthermore, sustainable development demands the integration of the circular economy in the exercise of territorial and urban planning competencies in both the planning and execution phases, as well as the establishment of criteria that promote the creation of smart and sustainable cities, enhancing the quality of life and well-being of citizens.
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LISTA categorizes land into two categories: urban land and rustic land, eliminating the category of developable land that existed before under the previous LOUA law.
This classification aligns with that established by Spain’s land law, Royal Legislative Decree 7/2015, of October 30, approving the consolidated text of the Land and Urban Rehabilitation Law.
Furthermore, it removes the distinction between consolidated and non-consolidated urban land, introducing situations of land subject to urban transformation operations in both urban and rustic areas.
For urban land, LISTA establishes urban transformation actions for urban improvement and interior reform aimed at addressing policies for the regeneration and improvement of existing cities rather than new land occupations.
The law incorporates provisions that provide greater flexibility for these types of actions, which are much needed in existing cities, eliminating the legal obstacles that existed under the previous law, which hindered their technical and economic viability.
The determinations of the law allow changes in land and building uses to increase their development and value potential in exchange for compensation in real estate or financial assets to the administration.
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LISTA establishes four categories for rustic land: 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.
This issue is crucial because, according to the provisions of the First Transitional Provision of the LISTA law, its application is integral, immediate, and direct, and rustic lands in Andalusian municipalities will fall into one of the aforementioned categories. This must be analyzed by the Town Councils in each of the files located on rustic land.
As mentioned, LISTA introduces the novelty of rustic land preserved due to risks so that these lands, where documented natural processes or anthropic activities capable of generating risks exist, make their transformation through urbanization incompatible as long as these processes or activities persist.
The emergence of this type of land means that when analyzing the possible transformation of rustic land, it is necessary to obtain not only urbanistic but also environmental information regarding, for example, flood risks, erosion risks, etc., which may hinder its development, and even the legalization or declaration as assimilated to being out of order of existing buildings.
Furthermore, the law distinguishes between possible actions to be carried out on rustic land: ordinary and extraordinary actions.
Ordinary actions are linked to the rational exploitation of natural resources (agricultural, mining, renewable energies), residential buildings necessary for the development of ordinary uses, infrastructures that must necessarily pass through rustic land, and actions on Disseminated Rustic Habitats (HDR).
Meanwhile, extraordinary actions are aimed at implementing facilities, including their expansion, as well as industrial, tertiary, or tourist uses, and any others that must be implemented on this type of land, including the works, constructions, buildings, roads, infrastructures, and technical services necessary for their development.
Another new feature of Law 7/2021 is the new criterion of non-prescription of legality protection, adopted by the new law, which is more favourable to prescription in rustic land. Thus, under the previous Law (LOUA), constructions carried out without licenses did not prescribe in all types of protected rustic lands, especially protected, whereas now, with LISTA, actions without licenses in certain protected lands do prescribe, being non-prescriptive in public domain and its easement zone, land preserved with risks, coastal influence zone, and lands included in the scope of real estate individually registered in the General Catalog of Historical Heritage of Andalusia.
Moreover, in terms of urban discipline, LISTA has established in the First Transitional Provision that in the exercise of powers to restore territorial and urban legality and sanctioning powers, in the application of the provisions of this law, it cannot cover cases of unfavourable retroactivity for the alleged offender. This involves incorporating a constitutional prohibition that in previous legislation, for example, Decree 2/2012, had not been considered.
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Among the most interesting novelties of LISTA, considering our field of work, we would highlight the discussed prescription of the restoration action in certain protected lands, which allows obtaining the Declaration of Assimilated to Out of Order (DAFO) for certain buildings, which was not possible with LOUA
In urban land, one of the novelties is the urban transformation actions for Urban Improvement, which will allow an increase in buildability, the number of homes, or the change of use or typology on a plot or set of plots of urban land, as well as the increase in urban utilization, provided they do not require reform or renewal of urbanization. These types of actions will be very important as they will allow the development of those vacant plots of urban land where the current urban planning establishes determinations that make their development unviable or do not meet the needs of the population in that area or zone of the city.
Finally, another significant novelty is the certifying urban entities, which will be able to collaborate with the administration in licensing processes by verifying that the projects and technical documentation comply with applicable technical regulations, urban legislation, and planning regulations. They will also verify the adequacy of the execution of the works to the license or responsible declaration. Thus, in accordance with the provisions of article 9.5 of LISTA, at the request of the individual or interested party, it is possible to incorporate the report of the certifying urban entity into the administrative file, and they will be taken into account in the resolution of the procedures, without prejudice to the verification and control that corresponds to the administration in the exercise of its powers.
Thus, this regulation has established objective conditions to assess whether the actions intended to induce the formation of settlements, without distinguishing what type of action is intended to be carried out, ordinary, extraordinary, etc. and if detailed for each municipality, failing to comply with what is indicated in LISTA in its article 20.b:
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 novelties introduced by LISTA have allowed us to obtain the Declaration of Assimilated to Out of Order for our clients’ homes in protected lands, which was not possible to obtain with LOUA, as well as the approval of urban improvement actions that allow the change of use of urban land plots whose development was unviable, such as changing from sports to commercial.
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Regarding renewable energies, the LISTA introduces several novelties, one of which is that in rustic land, the implementation of renewable energies is considered an ordinary action; that is, its authorization is done through a municipal license.
Another novelty is that the law establishes that works in existing buildings and installations in urban land destined for the installation of thermal energy use from renewable energies in homes, the installation of electric self-consumption with renewable energies up to 500 kW, and the installation of electric vehicle charging points will be processed through a responsible declaration, except in buildings of historical-artistic heritage with the category of a cultural interest asset.
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The requirements for constructing a detached single-family home not linked to urban land, as stipulated by the LISTA law and its regulation, Decree 550/2022, are as follows:
Only one dwelling per plot
A minimum plot size of 25,000 m2 (50,000 m2 in forested areas) on which a circle with a diameter of 50 meters can be inscribed.
Minimum separation from other residential buildings of 100 m.
The dwelling cannot be within a circle with a radius of 200 m, where including the building to be authorized, there are six residential, industrial, or tertiary buildings or constructions, or ten buildings or constructions of any use.
The maximum occupancy of the building will be 1% of the plot area, minimum 250m2.
The maximum occupancy of the excavation (cut or fill) will be 30% excess over that of the building.
In the rest of the area, the tree cover, topography, and natural conditions of the terrain will be maintained essentially (except for the need for implementation of ordinary actions)
The maximum height of the building will be two floors.
The distance from the building to the boundaries will be a minimum of 25 m.
The basic autonomous services required by the dwelling must be guaranteed autonomously and preferably through self-consumption installations with renewable energy sources. Exceptionally, connection to existing and nearby networks.
The building will be located outside flood zones, and when built on forest land, conditions for population safety in case of fire must be guaranteed and comply with the conditions established in forestry legislation.
Approval of an Action Project prior to obtaining municipal licensing.
Not to impede the normal development of ordinary uses of rustic land, which will require a hearing for owners of adjacent land in the authorization process.
Commitment to apply for urban planning permission, in accordance with the approved Action Project, within a maximum period of one year from the resolution of the prior authorization procedure.
Payment of compensatory provision on rustic land, in accordance with Article 22.5 of the Law, is 15% of the budget for the physical execution of the works to be carried out.
In accordance with article 22.3 of the LISTA, the construction of a detached single-family home requires, for legitimization, authorization from the municipality prior to the license that qualifies the land where it intends to be established.
This document will describe the dwelling to be established, and it will fundamentally assess compliance with the issues indicated in the previous point regarding the induction of new settlement formation.
In this document, the promoter commits to paying the compensatory provision on rustic land, in accordance with article 22.5 of the Law, which amounts to 15% of the budget for the physical execution of the works to be carried out.
According to article 22.2 of the Law, detached single-family homes in rustic land will not impede the development of ordinary actions on adjacent properties, which will entail analysis during the Action Project, as well as a hearing for neighboring landowners.
This analysis must observe whether the residential use is compatible with the ordinary activity being carried out on adjacent land so that after the authorization of residential use, the cessation of ordinary activity is determined as a consequence, for example, of risks to the health of the users of the residential building.
According to article 31 of the Regulation of the LISTA Law to build a detached single-family home in rustic land, the plot on which it is located must have a minimum surface area of 25,000 m2, with no discontinuous plots allowed.
Regarding this issue, the regulation has not observed what is established in the LISTA Law, as this determination of a minimum plot of 25,000 m2 for all municipalities in Andalusia is a generalized determination without a detailed study for each of the municipalities that make up the Andalusian autonomous community, in compliance with what is indicated in article 20 of the LISTA.
Thus, from the above and analyzing the cadastral land registry in municipalities in the Axarquía region, such as Arenas, Sedella, Salares, Canillas de Albaida, and Algarrobo, it is observed that plots of rustic land with a surface area exceeding 2.5 ha. account for 2.38% of the total rustic land plots, which greatly conditions the possible construction of detached single-family homes in rustic land in this area.
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Regarding authorizations for construction works, the LISTA has compiled and nuanced what was established by the previous legislation, LOUA, regarding licenses and responsible declarations.
The Responsible Declaration is the document signed by an interested party in which they state, under their responsibility, that they comply with the requirements established in the current regulations to obtain recognition of a right or faculty or for its exercise, that they have the documentation to prove it, that they will make it available to the administration when required, and that they undertake to maintain compliance with the previous obligations during the period inherent to said recognition or exercise so that they can start the works at the time of presenting the aforementioned Responsible Declaration to the City Council.
Thus, the following actions are subject to Responsible Declaration:
The execution of works of scant constructive entity and technical simplicity that do not require a project according to current legislation.
Works in existing buildings or installations that are in accordance with territorial and urban planning or are in a legal situation of non-compliance, located in urban land not subject to urban transformation actions, provided they do not alter the occupancy and height parameters, nor entail increases in buildability or the number of dwellings.
Works in existing buildings and installations that are in accordance with territorial and urban planning or are in a legal situation of non-compliance, located in rustic land and aimed at improving energy efficiency conditions, integrating renewable energy installations, or reducing their environmental impact, provided they do not involve new construction or an increase in built-up area.
The occupation or use of buildings or installations covered by a previous license or responsible declaration of works, provided they are completed and comply with these and their purpose is in accordance with the applicable regulations.
The occupation and use of existing buildings that are in accordance with current planning or are in a legal situation of non-compliance, located in urban land not subject to urban transformation actions, provided they have not been subject to works.
Changes of use in buildings, or parts thereof, that are in accordance with territorial and urban planning or are in a legal situation of non-compliance, located in urban land not subject to urban transformation actions, provided they do not increase the number of dwellings and the intended use is within the permitted by said planning.
The rest of the actions are subject to municipal license.
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At Tejada Solicitors, we are aware of the complexities of urban planning in Spain. That’s why we always recommend hiring a lawyer and architect specializing in real estate law.
Pre-purchase checks on the urban situation of the property you wish to acquire are crucial in the buying process and should be conducted before signing the reservation contract. Rushing into signing should be avoided; the terms of the sale should be clearly stated and refundable.
At Tejada Solicitors, our real estate law experts will meticulously review all property documentation to ensure its total legality, enabling you to acquire it without any encumbrances.
During the property purchase process in Spain, you may also need an architect to assess the physical condition of the property and identify any potential issues. In some cases, these issues may be serious enough to reconsider the purchase. Therefore, we advise all our clients to obtain a property report before signing the reservation contract.
Furthermore, we suggest consulting with a local real estate agent to assist you in finding a property that fits your needs and financial plan.
The tax aspect of the purchase process is also crucial. If you intend to establish your residence in Spain, study and plan in advance the tax implications of your move to Spain and how the sale or exploitation of your assets abroad may affect your finances. Keep in mind that in these cases, international double-taxation agreements come into play.
For a secure and hassle-free investment, it’s crucial to enlist the support of seasoned professionals, including real estate agencies, legal experts, tax advisors, and architects. They will navigate you through every step of the purchasing process, ensuring a smooth and risk-free transaction.
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You can build up to 25,000 m2 (50,000 m2 in forested areas) on a plot of land where a circle with a diameter of 50 meters can be inscribed.
You can construct a detached single-family dwelling with a maximum height of two stories and a maximum footprint of 1% of the parcel’s area.
The maximum height for a dwelling on rustic land is two stories or 7 meters. For buildings designated as storage or for other uses, it depends on municipal regulations and the intended purpose.
You can construct a detached single-family dwelling with a maximum height of two stories and a maximum footprint of 1% of the parcel’s area.
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