Can I be sanctioned for not having a certificate of habitability?

Fines of up to 100% of the value of the building for occupying the property without a certificate of occupancy.

Fines of up to 300% of the value of the works or up to 100% of the value of the building for change of use.

Among the recurring questions we are asked in our law firm, the one that seems to cause most confusion and concern to our clients, is to know what problems can arise when buying a property without a certificate of occupancy. To answer this important question, we are going to analyse the applicable legislation.

In the Community of the Balearic Islands we have Decree 145/1997, of 21 November, which is the instrument that regulates the conditions of minimum measures, hygiene and installations for the design and habitability of dwellings and the obtaining of certificates of habitability for dwellings, premises and any other building intended to house people.

Apart from what is mentioned in Decree 145/1977, the specifications of the Technical Building Code and the provisions set out in the planning or municipal ordinances must also be followed.

Likewise, it is necessary to take into account Law 5/2018, of 19 June, on housing in the Balearic Islands, Law 12/2017, of 29 December, on Urban Planning in the Balearic Islands (LUIB) and the regulations that develop it.

What is the occupancy certificate? 

The cédula de habitabilidad (certificate of habitability) is the certificate issued by the island council recognising that the requirements of a dwelling, premises or non-dwelling residential building for human habitation have been met.

This certificate is compulsory for the building to be used. Furthermore, article 16 of Law 5/2018, of 19 June, on housing in the Balearic Islands, also imposes this obligation in the case of renting the property.

Article 16.4 of Law 5/2018 establishes that before any transfer of the property for sale, rental or transfer of use, a copy of the current certificate of habitability or, if applicable, the definitive qualification must be included. In the event that the certificate or rating is not available, this fact shall be expressly stated in the contract or deed.

Problems with the contracting of water, gas, electricity, telephony, etc. in properties that do not have a certificate of occupancy.

In addition, the certificate of occupancy is the necessary document to be able to contract water, electricity, gas or any other type of energy or telecommunications supply. In other words, if the dwelling, premises or residential building that is not a dwelling, does not have a valid certificate of occupancy or equivalent document, it will not be possible to contract with any type of supply, marketing or distribution company. However, provisional contracts may be entered into with the accreditation of the building permit and for the period of time established therein for the completion of the construction, building or installation works.

Furthermore, Law 12/2017 establishes in art. 166 that for properties in a situation of out of order (“fuera de ordenación) of article 129.2.b) (executed without a license or with a cancelled license even though the adoption of reinstatement measures no longer corresponds) that are after the 1st of March 1987, it will be possible to require the service providers, distributors, marketers or suppliers to cease providing their electricity, gas, water, sanitation, telephone, telecommunications or similar services, after verifying that the property does not have the required habitability licence in force. If the Town Hall does not act in this regard, the corresponding Island Council may assume the powers to do so. For buildings built before the 1st of March 1987, the supply companies must demand the certificate of lack or equivalent document (art. 262 of the General Regulation of the LUIB for the island of Mallorca).

What kind of buildings must have a certificate of habitability?

According to Decree 145/1977, all buildings intended to house people must obtain a certificate of habitability:

-Dwellings: Closed buildings, continuous or discontinuous, intended for habitation.

-Premises: Spaces not intended for habitation but which can house people, where, among other things, business, work, industry, recreational, sporting or meeting functions are carried out.

Tourist accommodation, in all its forms and categories, is considered to be a residential building but without the character of a dwelling and is therefore regulated by specific regulations. However, the decree is applied in a supplementary manner when they are not regulated by special regulations.

Different kinds of occupancy certificate

Not all buildings are subject to the same habitability requirements. A distinction must be made between existing buildings (before 1977) and those built after 1977 that are newly constructed, have undergone a change of use or extension work, or have had their interior layout changed.

There are three types of certificates of occupancy:

  • Cédula de primera ocupación (First occuppancy certificate): this is the one issued when works of new plant, extension, reform and integral or partial rehabilitation have been carried out that affect more than 60% of its distribution, consolidation, restoration or change of use.
  • Renewal certificate: This is issued when the certificate has expired and renewal is requested.
  • Cédula de carencia: this is issued in the case of buildings that were completely finished on 1 March 1987 and do not have the previous cédulas.

The certificates of habitability can be revoked if the minimum conditions of habitability are lost (Law 5/2018).

Can non-legal properties (“inmuebles inadecuados o en fuera de ordenación”) obtain a certificate of habitability?

To know whether a property is inadequate or out of order (inadecuado o fuera de ordenación), you can read the article by clicking here.

The answer, for URBAN properties, is provided by the Decree-Law of 6/2023, of 2 October, on urgent housing measures, which establishes that “dwellings located in buildings or constructions legally located on urban land, but in a situation of inadequacy because they have been built under the protection of a previous planning, or out of order because works of extension or reform have been carried out without a license or with a license that has been annulled, and for which, on the entry into force of this Decree-Law, the adoption of measures to re-establish urban planning legality is no longer appropriate, may obtain the certificate of habitability or renovation of habitability provided that the property meets the conditions of measurements, hygiene and installations established in the regulations on habitability, and its situation of being out of order or inadequate may not be a reason for refusal”.

In other words, for urban properties, despite being inadequate, it will be possible to obtain a certificate of habitability if they meet the requirements of Decree 145/1977. However, NOT ALL those that are out of planning permission will be able to obtain the certificate. Remember that there are three categories of out-of-plan (fuera de ordenación) buildings as we have explained in the previous post; i) because the planning foresees their demolition, compulsory and free transfer or expropriation, ii) because they have been built without a licence or with a cancelled licence and the infringement has expired in order to re-establish legality, and finally, iii) those that have been legally implanted but on which extension or reform works have been carried out without a licence or with a cancelled licence. Only in the latter case, in urban properties, provided that on 4 October 2023, which is the date of entry into force of the decree, there are no measures to restore legality, or unsuitable properties, will the certificate be granted if it meets the requirements of Decree 145/1977.

Sanctions for not having the occupancy certificate

Throughout this article we have seen how Decree 145/1977, Law 5/2018 and Law 12/2017 impose the obligation to have a certificate of habitability for a property to be occupied by people and to be able to contract the services of suppliers, distributors or marketers (electricity, water, gas, telephony…).

What sanction can I be imposed for transferring a property without a cédula de habitabiliad?

Law 5/2018, in art. 86, classifies as a minor infringement: “Failure to include in the contract or deed of any transfer by sale, rental or transfer of use of a building, dwelling or premises, the corresponding certificate of occupancy or the fact of not having it”. In other words, the infringement, in line with the aforementioned in art. 16.4, is for not expressly stating the non-availability of the certificate, not because the property lacks the certificate.

This infringement carries a fine of 60 to 3,000 euros.

Fines from 60€ to 3,000€ for not stating the unavailability of a certificate of habitability in any public or private contract for rental, sale or transfer of use.

And what sanction can I be imposed for use or change of use without a cédula de habitabiliad?

Art. 167 LUIB differentiates the sanction depending on whether a building is used without the authorisation or if the change of use is made without the required planning permission.

Urban infraction for use of a building without a certificate of occupancy:

-Fine of 25-50% of the value of the building for use without title in cases where it is permitted by the regulations.

-Fine of 50-100% of the value of the building for use without title in cases where the use is not permitted or is conditional.

It should be borne in mind that this sanction is for use without title, such as a certificate of habitability, but it is independent of the sanctions to be imposed for construction without a building permit. In this case, both penalties will be accumulated as they are different offences.

Urban planning infringement for change of use of a building without a building permit:

For the case of change of use, for example when using a building intended for agricultural storage as a dwelling, regardless of whether works are carried out to achieve the change, the sanction to be applied will be the higher of the amount corresponding in accordance with the above or between the following:

-Fine of 50-100% of the value of the works carried out to achieve the change of use on urban or developable land.

-Fine of 150-300% if the works have been carried out on land intended for parks, gardens or open spaces, facilities, infrastructures and other reserves for endowments.

-Fine of 100-250% if the works have been carried out on unprotected rural land.

-A fine of 250-300% in the case of protected rural land.

For supply companies, the sanction to be imposed will be from 600 to 1,000 euros in the case of provisional contracting without requiring the building permit, and from 10,000 to 15,000 euros in the case of definitive contracting without the certificate of habitability, without prejudice to the application of the economic benefit exclusion clause.

Fines of up to 100% of the value of the building for occupying the property without a certificate of occupancy.

Fines of up to 300% of the value of the works or up to 100% of the value of the building for change of use.

It should be borne in mind that whenever an action or omission typified as an urban planning infringement is carried out, in addition to the sanctions mentioned above, there will be the imposition of measures for the restoration of legality or reinstatement of the altered physical reality (e.g. demolition of the works carried out to achieve the change of use), compensation for damages and compensation for damages. On the other hand, some infringements could have criminal consequences.

This article is for information purposes only, and for the sake of brevity, we have not provided all the exceptions or special cases (social housing, historical heritage, etc.), therefore, in order to study a case in depth and provide answers applicable to your specific case, it would be necessary to carry out a legal study.

If you have been notified of a decision to initiate a sanctioning procedure, or if you have any doubts regarding the obtaining of cédulas, you can contact us and we will study your case.

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