From our law and economics firm, specialized in real estate and urban planning law, we regularly advise both national and international clients on property acquisitions in Spain. One of the aspects that raises the most questions, particularly in new-build purchases, is the so-called Declaration of Responsibility for Occupancy. For this reason, we consider it essential to clearly explain what this document entails, its implications, and the potential risks involved.
If you are purchasing a newly built property in Marbella, on the Costa del Sol, or elsewhere in Spain, it is important to understand the concept of the Responsible Declaration of Occupancy (Declaración Responsable de Ocupación) in Spain, as this document often raises questions among purchasers of new-build properties.
The Responsible Declaration of Occupancy in Spain is a document submitted by an individual — generally the property developer — before the relevant Town Hall, declaring under their own responsibility that the construction has been completed in accordance with the previously granted building licence and that it complies with all legal and urban planning requirements under the applicable regulations.
In Andalusia, Law 7/2021 on the Promotion of the Sustainability of the Territory of Andalusia (LISTA) expressly provides that completed new-build properties may evidence compliance through either:
- an occupancy or use licence (licencia de ocupación o utilización), namely an administrative permit issued by the relevant Town Hall confirming that the property complies with the legal requirements to be occupied; or
- a Responsible Declaration of Occupancy or Use (declaración responsable de ocupación o utilización).
Therefore, the Responsible Declaration in Spain allows the right of occupancy to commence from the date of submission, without prejudice to the fact that the Town Hall may subsequently inspect the property to verify that everything complies with the applicable regulations.
However, caution should be exercised. The Responsible Declaration system in Spain operates under the responsibility of the developer, meaning that following an inspection, the Town Hall may require corrective measures or, in certain circumstances, even order the cessation of occupancy and impose penalties.
What is the difference between a First Occupancy Licence and a Responsible Declaration in Spain?
The principal difference lies in the way the Town Hall verifies whether the property may legally be used for its intended purpose, namely residential occupation.
With a First Occupancy Licence, the municipal control takes place before occupation of the property through an express administrative resolution issued by the Town Hall. By contrast, under a Responsible Declaration of First Occupancy, the interested party declares under their own responsibility that the property complies with all legal requirements necessary for occupation.
What issue does the Responsible Declaration solve?
Primarily, lengthy waiting periods. The main purpose of this mechanism is to streamline administrative procedures in urban planning matters without eliminating legal oversight by means of a faster and more efficient procedure.
Where and how is the Responsible Declaration of First Occupancy filed in Spain?
The Responsible Declaration is filed by the developer before the Town Hall where the property is located.
To do so, the developer completes a standardised form available on the Town Hall’s website and submits it electronically together with the mandatory documentation through the municipality’s electronic platform.
Some of the documents typically required together with the application include:
- Final Works Certificate.
- Building Licence.
- Installation Certificates.
- Energy Efficiency Certificate.
- Proof of payment of municipal fees.
What are the risks associated with a Responsible Declaration of First Occupancy?
Firstly, liability rests with the person making the declaration. Therefore, if following an inspection, it is determined that the construction does not comply with applicable regulations, responsibility will generally fall upon the developer.
However, there may also be urban planning consequences directly affecting the property itself. For example, the Town Hall may order measures to restore urban planning legality or, in the most serious cases, order demolition of the construction.
For this reason, at Welex, we always recommend obtaining advice from a specialised technical expert before signing the public deed of purchase before a Notary Public.
Please do not hesitate to contact one of the specialised English-speaking real estate lawyers in Spain should you require any legal assistance when purchasing a property in Spain.
