Declaración de obra nueva: bringing what was built up to date

· By the Consultor y Abogado teamChat on WhatsApp

Built is not the same as registered

It is the most common surprise when selling: the house is standing, the cadastre knows about it and the Land Registry still says there is a vacant plot there, or a house half the size.

The declaración de obra nueva (declaration of new construction) is the act that brings this up to date: what has been built is declared before a notary and registered in the Land Registry. Without it, what was built does not exist for the bank that has to grant the buyer's mortgage, and the sale falls through.

There are two routes and they are not alike: new construction under way or completed, with its licence and final completion certificate, and the so-called obra nueva antigua (old construction), for what was built years ago without paperwork.

Old construction (obra nueva antigua), step by step

  1. 1
    Prove how old it is
    With a certificate from an architect or surveyor, or with the cadastre, or with a notarial record. It must be clear since when it has been built.
  2. 2
    Check that the infringement is time-barred
    This is the key: the law allows registration when, due to the time elapsed, measures to restore legality can no longer be taken.
  3. 3
    Make sure nothing is recorded
    If planning enforcement proceedings are recorded in the Registry, this route is closed.
  4. 4
    Check whether the land allows it
    On protected land the time bar does not run the same way, and there this route often does not exist.
  5. 5
    Deed and registration
    With the architect, the notary and the registrar, and ten-year building insurance where applicable.

Where it gets stuck

In three places, and it is worth knowing them before you start spending.

The time bar is not the same everywhere: the periods are set by each region's planning law, and there is land where it does not run.

Time-barred does not mean legalised. The fact that demolition can no longer be ordered does not make the works compliant with planning: they remain in a special situation, with limits on what can be done with them later.

And the cadastre and the Registry have to end up saying the same thing. A mismatch in square metres between the two is what stops a transaction at the final stage, with the buyer and the bank waiting.

Further reading: building permit or responsible declaration in Madrid and what to check before buying a home.

Questions about obra nueva

Can I sell without declaring the new construction?

You can sell what is registered, but the buyer will be buying less than they see, and if they need a mortgage the bank will almost always stop it.

How much does it cost?

It depends on the architect, the notary, the registry and the declared value. What can be known in advance is whether the route exists, and that is the first thing we look at.

What if the extension is two years old?

Then the infringement is not time-barred and the route is different: legalising it, if the planning rules allow. It is worth looking at as soon as possible.

Is it enough to change it in the cadastre only?

No. The cadastre and the Registry are different things and serve different purposes. For selling and mortgaging, the Registry is what counts.

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