ALTHOUGH it seems somewhat strange, there are quite a few situations in which a property is built, sometimes by mistake and in good faith and sometimes on purpose and knowing it, on land owned by someone else without their permission.
This can occur in different situations such as for example:
When someone buys a plot of land thinking that it has a specific surface and shape and that is not the case, because they have been given incorrect information, or the cadastral plan does not correspond to the reality and the person ends up building by error, part or all of the construction on a neighbour’s plot.
Family may have built on ground that belongs to the other. For example a couple who decides to build their holiday home obtaining money from one of them (a non-owner), on the other’s land (who is deemed the owner).
Cases where the same land is registered by mistake and is duplicated in the Land Registry and there are therefore two owners and two different registry numbers for the same plot, which is called double registration.
There are other cases as well which make the possibility of building on another person’s land more common than one would expect.
Legal Regulation. The construction on foreign soil or land is regulated in the Spanish civil code, and one must take into account:
Article 358 which says that in principle what has been built on someone else’s land belongs to the land owner. This is the general principle, although legally there are some circumstances that must be considered, as we will see below.
Article 361 introduces the concept of GOOD FAITH, in such a way, that if the person who built on another’s land did so in good faith, then the landowner must choose between:
Keeping for themselves the work done and paying compensation to the person who undertook the work in an amount determined in the Spanish Civil Code itself, or
The landowner could force the person who built the property to pay a commercial price for the land.
If however the person who built on the land, did it in bad faith, then according to article 362, they will forfeit what has been built without any right to compensation.
The person who built in good faith on land that they believed was their own, can claim compensation and details are included in articles 453 and 454 of the Civil Code, which effectively allow them to reclaim the costs of necessary work undertaken, but not for anything that may be considered unnecessary.
The rights that one can claim if one has built on someone else’s land, will depend in the first place on whether they have acted in good or bad faith.
For practical purposes, it will be essential to be able to prove the expenses paid by presenting corresponding invoices from builders, suppliers, etc.
Therefore, before acquiring a property in Spain or carrying out a construction on your own, it is necessary that you make sure that a proper study and due diligence is done by your lawyer.
If you wish to receive expert legal advice in this area, contact us and we will help you.
The information provided in this article is not intended to be legal advice it simply transmits information related to legal issues.
Carlos Baos (Lawyer)
C/Diana 19, 2º D, 03700 Denia (Alicante) Spain
Tel. +34966426185 Fax +34965784471
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