Problem of housing without first occupation license

vivienda sin licencia primera ocupacion


When a dwelling lacks first occupation license, the consequences affect both seller and buyer


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Concept of "first occupancy license"

According to STS, of the Board of Administrative Litigation, of 18 July 1997:

"The license of first occupation of a building is a necessary administrative authorization, which aims to contrast purpose if respected in reality the construction license, check whether or not they have met the conditions of the license and check whether the building meets the ideal conditions of health and safety and whether it can be enabled for the purpose for which it is intended. "

Namely, is a formal grant administrative license, a document, which it is issued by the Public Administration, in this case, by the Local Corporation, after finding that a construction or housing, was run according to the technical project work was presented at the time to apply for the building permit. It built that meets all health and safety requirements.

With this license, what is proven is that the work was performed under the optimum conditions, without altering anything and compliance with current building regulations of the time. It is the only way to legalize construction.

It is appropriate to apply this first occupation license, and You are obligated to, the seller, as an agent of the building, incorporated in advance to the obligation to deliver housing. It is an implied obligation in the contract of sale.

This document is a guarantee for third parties to acquire a property, for, in case of lack of this license, You will have problems later form, when you want to legalize, inscribe or sell.

Otherwise, the property can not be used for the purpose for which it is intended, it will not be possible to hire the minimum necessary services, as water or light.

Failure to obtain the license of first occupation

jurisprudencialmente, we are facing an issue that generates many conflicts. The problem arises when buyers want terminate the contract of sale, either because the seller did not apply for license, well that has not been resolved by the Administration's request it. It is common for buyers to realize the lack of license when applying for a mortgage loan for housing payment.

 The granting of the license of first occupation requires an express act by the administration. Although previously there was some controversy on this issue, since the promulgation of the Royal Decree 8/2011 support measures to mortgagors (artº 23), There is no doubt that the administrative silence is negative.

In this sense, we must emphasize the STS 10 September 2012, sitting as general doctrine, to analyze whether the failure to obtain such license or refusal thereof can terminate the contract for breach.

This statement expresses "question of an obligation incumbent on the developer-seller to the protection of the 1258 CC- as inherent consequence of the nature of the contract and in accordance with good faith, use and law-, It does not mean that you always have an essential character, so that their failure to exercise adjudicative allow pretension”.

To set consequences of failure It is necessary to determine in each case whether the breach of this obligation or not essential character, for only violation of a essential obligation, no accessory, determinant can understand the frustration of the purpose of the contract and justify the resolution of the same.

  • In this sense, first, It conclusive what the parties have agreed, since if delivery of the certificate was agreed as a matter of essential obligation of the seller is obvious that non-compliance can lead to the resolution, given that Article 1469 C.Civil obliged to deliver the thing with everything that is expressed in the contract in the interest of the general principle of contractual freedom of pacts.
  • If delivery of the certificate is not expressly agreed to this as an essential obligation, to judge the merits of the resolution Urged by the buyer for its lack of delivery can not be issued a final judgment in the abstract by applying general rules, but must examine the specific circumstances of the case. Are these that allow understand justified or not intended resolution, according to the failure to obtain the license disclosure, respectively, as central or ancillary to fulfill the purpose of the contract. Delivery of the license must be regarded as ancillary obligation and therefore unfit for action can flourish resolutoria of the buyer founded in his absence, when the lack of concession responds only to the overload or delay in granting Administration, and not the absence of the factual and legal budgets required for granting. It is thus necessary to concur this assumption that lack of license does not prove substantial impediment to the use of the property (habitability) and access to their supplies within the required deadline for delivery and the delivery delay should not be considered by itself as a substantial and enabling for the resolution of the contract, accordance with the principles that have been enunciated before. "

On misma STS, noted that the burden of proof in the case of accessory and not essential, It corresponds to seller, must demonstrate that the delay in obtaining the license does not respond to reasons related to the inability to give the property use to which it is intended.

However, if we go to the article 28.1 of the TRLSRU, approved by RDLeg. 7/2015, You can not give a property without first occupation license, for, states that "To authorize deeds of declaration of new construction site, notaries require, for his testimony (…) the granting of administrative authorizations necessary to ensure that the building meets the conditions for your destination to the intended use in urban planning applicable (…).” Here it is included, albeit implicitly, the first occupation license.

In fact, compliance with obtaining the license can not be delayed indefinitely in time. On STS 11 March 2013, it was considered by the Court, if the time elapsed since the housing should have been given it is sufficient to terminate the contract, This was decreed, unless the delay is beyond the control of the seller.

For, for example, that there impossible for reasons beyond the seller and the buyer, also you have the latter right to terminate the contract, because that never acquired real estate that may be destined for use. Without that first occupation license, it is understood that good does not meet the minimum conditions necessary for living and health. What would be delivered it would be a different thing to what was agreed in the contract of sale, entitled "the other for the other, "that, that later we.

Ultimately, an active and responsible action is promoted by the seller, Buyer, Administration and competent, because this gives legal certainty. The STS 11 March 2013 He recognizes that "If the security of real estate is one of the characteristic factors of advanced legal systems and even one of the key elements of any stable economy that fosters secure legal traffic and facilitates access to credit, most important is still, si cabe, when foreign buyers are less easily to know all the Spanish legislation that may affect them to buying a home in Spain, but they buy from the confidence they deserve them the Spanish protection system property rights. "

Beyond the doctrine established by the Supreme Court, many authors, They consider the failure by the seller obtaining the license of first occupation is a incumplimiento esencial, it is a prerequisite for the property have recognized the minimum necessary conditions to destine to the purpose of the same. Otherwise, It occurs the above, the "Someone else" functional, having the buyer the right to terminate the contract.

The Doctrine of the del "thing instead of another"

On the doctrine of the del "thing instead of another", what is delivered by the seller is a different thing than originally agreed in the contract of sale, either because the seller has delivered one thing that causes dissatisfaction objective, or because the buyer can not allocate either the purpose for which he obtained, causing frustration to the contract.

On STS 14 January 2010, They have been established requirements that let you apply this doctrine:“(…) It develops from the article 1166 CCivil, which states that "The debtor of a thing can not force your creditor to receive a different, when he is of equal or greater value due '; therefore, identified the proper thing, it's not possible, without agreement between the parties, change, because the unilateral change by the debtor determines the failure to.

Ultimately, the "Else for the other" It applies when the purchase agreement a different thing is given to the agreed, what it is revealed when there is such a serious fault in the qualities of the good delivered, is ontological or functionally, which it allows to consider being a breach of contract. (…)

From the above it follows that notes to be satisfied to be deemed to have been given different thing it agreed to behave breach of the contract are two:

  1. Inability of the object for which it was intended.
  2. Dissatisfaction of the buyer, since when the different object is accepted, the aforementioned doctrine cannot later be alleged. ”

In fact, on STS 16 November 2000, it was already recognized that "There is full breach of the sale contract, due to the inability of the object sold to fulfill the purpose for which it was sold, and consequently there has been buyer dissatisfaction, what in these cases allows to go to the protection that the articles 1101 and 1124 C.Civil.

also STS 31 July 2002 express, after recapitulating numerous jurisprudence, que “evidence of frustration at the end of the contract, eliminating the legitimate expectations of the injured party triggers the resolution, (…) ultimately, the inability of the object ".

Purchase without first occupation license

In the case of having bought a real estate without the appropriate first occupation license, the seller is obliged to return to the buyer everything paid for the sale, as well as the costs of the trial and the expenses derived from the mortgage, if. In a claim before the Courts, the most probable result is the declaration of nullity of the sale of the property, if it doesn't have the first occupation license. In addition to the refund of the price paid for the sale, plus what was paid in taxes, Commissions, etc., compensation may be requested for damages in favor of the buyer.

It is customary to make such a sale in cases of irregular housing, namely, outside urban planning. When a home is illegal, the appraised value will be much lower than its real value. Said valuation will not be enough to get a mortgage loan for your purchase.

In case the asset is acquired, the new buyer,  becomes the owner and will have to be responsible for the legalization of the real estate.

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