Town planning law in Mallorca

In the Balearic Islands, the general regime is established by Law 12/2017 of 29 December on town planning in the Balearic Islands (LUIB), which makes building and land-use activities subject to a municipal planning licence, prior notification or, in exceptional cases, a responsible declaration. The main ones are: the major works licence (new build, extension, structural refurbishment, demolition), which requires a technical project; the minor works licence or prior notification, for technically simple works of limited scale that do not need a project; the first-occupation or use licence; parcelling and division licences; the change-of-use licence; and activity licences, which are governed by a separate law (Law 7/2013).

On rural land, in addition to municipal control, prior authorisations or reports from the Island Council (Consell Insular) are usually required, and the permitted uses and buildings are severely restricted by the Law and by the Island Territorial Plan. The formality you need depends on three factors: the classification and zoning of the land, the scope of the works and whether the building is protected or listed.

Before commissioning a project, it is advisable to ask the Town Council for a planning report or certificate and to study the applicable planning rules. Doing so afterwards, once money has been invested in a project that cannot be authorised, is usually an expensive mistake.

It is a document in which the developer states, on their own responsibility, that the works comply with the planning rules, that they hold the technical documents proving this and that they undertake to maintain compliance for the duration of the works. Under the LUIB, the general rule is a licence or prior notification; the responsible declaration has been used under exceptional and temporary regimes to speed up certain works (for example, some works on urban land linked to refurbishment and energy efficiency), and some town councils accept it for specific formalities, as Palma does for certain execution projects.

It allows works to begin without waiting for an express decision, but it does not remove control. The authorities may subsequently check what has been declared and, if they find inaccuracies, falsehoods or essential omissions, they may render the declaration ineffective, order suspension of the works and open planning enforcement proceedings, in addition to any liability that may arise.

Nor is it suitable for everything: if the works cannot fall within this regime (for example, because they are on rural land, affect a listed building or touch the structure), they are treated as carried out without a licence. It is therefore advisable to verify, against the planning rules and the Law, whether the works can be processed in this way, and to keep the technical certificate and supporting documents.

The first thing is not to let it pass: time limits are short and failure to respond may end in final decisions. Read the notification carefully to identify what you are accused of, who has initiated the proceedings (Town Council or Island Council), what interim measures have been adopted (for example, suspension of the works or sealing) and what period you have to submit representations, which is usually brief.

You should be aware that, where there is a planning offence, the authorities must initiate two separate but related procedures: the penalty procedure, which imposes a fine, and the procedure to restore legality and the altered physical state, which may end in legalisation or demolition. In both you may submit representations, provide evidence and propose expert evidence. The most common defences are limitation or lapse, the age of the works (which must be proved by documents, aerial photographs or technical certificates), the existence of a valid licence or prior notification, the possibility of legalising the works and the correct identification of the person responsible.

There are also strategies for reduction: acknowledging liability and paying voluntarily may reduce the penalty, and voluntarily carrying out what has been ordered may reduce it further, although these decisions must be taken with knowledge of their effect on the restoration procedure. Do not sign or pay anything without taking advice.

Yes, if the building is unlawful and cannot be legalised. Demolition is a measure to restore legality and the altered physical state, separate from the financial penalty. It is ordered when works have been carried out without or contrary to a licence, are not compatible with the current planning rules and the authorities are still in time to require that restoration.

The period for requiring it is one of the key questions. In general, for completed works, the LUIB sets a maximum period of eight years from completion, which must be proved by whoever relies on it. However, there are cases in which this action is not time-barred, such as works on protected rural land, on listed assets and spaces, in green areas or on public infrastructure. And the passage of time does not legalise the works: they may remain in a non-conforming situation (fuera de ordenación), with limits on carrying out works and on certain formalities.

If the owner does not comply with the demolition order, the Town Council may impose repeated periodic penalty payments and, finally, carry out the demolition itself at the offender's expense. If the building is an inhabited home, court authorisation is needed to enter. The order may be appealed and suspension requested; it is important to do so in time, because a final order is very difficult to reverse.

The consequences are the most serious in Balearic planning law. To begin with, penalty proceedings are opened, with fines that can be very high (they may be calculated on the value of what has been built), together with proceedings to restore legality, which normally lead to demolition because buildings on rural land are permitted only in very limited cases. The Law gives this land special protection, so that offences on protected rural land are never time-barred.

There are also indirect effects: new building work without a licence cannot be entered in the Land Registry, it is difficult to obtain utilities, insurance or finance, and the sale of the property becomes complicated because the buyer inherits the problem. In sales of rural properties, it is common to discover buildings that do not appear in the Land Registry or that lack title.

If the building is old, limitation must be studied, as must the possibility of using extraordinary procedures for incorporating buildings on rural land into the planning framework, which have been opened under certain conditions and within certain periods and should be checked. Each case depends on the date the works were completed, the classification of the land and the evidence available, so a prior technical and legal review is essential.

Legalisation consists of obtaining retrospectively the licence or title that should have been requested before the works were carried out. It is possible when what has been built is compatible with the current planning and other rules, that is, when it could have been authorised had the application been made in time. It is not possible if the works breach essential parameters (use, buildable area, height, distances or the classification of the land itself), in which case only partial adaptation or demolition is possible.

The procedure normally begins within the proceedings to restore legality: the authorities require the interested party to apply for the licence within a short period, with the technical documents (project and technician's certificate) showing that what has been built conforms. If granted, the restoration is closed, although the penalty for having built without a licence usually remains, along with the corresponding fees and taxes. If it is refused or not applied for, demolition is ordered.

It is important not to confuse legalisation with limitation: unlawful works that are time-barred do not become lawful, and they may remain non-conforming, with limits on refurbishment. There are also extraordinary procedures for incorporation into the planning framework for certain buildings on rural land, with specific conditions and time limits that must be checked at any given time.

Compulsory purchase (expropiación forzosa) is the deprivation of an asset or right on grounds of public utility or social interest, in return for compensation (justiprecio), and is governed by the Compulsory Purchase Act of 1954. In planning matters it is common where land is needed for roads, public facilities, general systems or infrastructure. The authorities must declare the public utility, identify the assets and notify the owners, who have the right to be heard.

The first step is to try to reach an agreement on the compensation. If none is reached, the expropriated party submits a valuation statement (hoja de aprecio) with reasons, and the authorities reply with their own. If the disagreement persists, the case passes to the Provincial Expropriation Board (Jurado Provincial de Expropiación), which sets the compensation. The valuation follows the rules of State land legislation: the land is valued according to its actual situation (not planning expectations), together with buildings and other rights, and a 5% affection premium is added.

The Board's decision may be appealed before the administrative courts, normally with the help of expert evidence. It is important to monitor the time limits, to claim default interest if the authorities are slow to pay or set the price and, where appropriate, to consider the right of reversion if the asset is not used for the purpose that justified the compulsory purchase.

Not without title. Public property (streets, pavements, tracks, squares, coasts) belongs to the authorities and its use by an individual requires an authorisation or concession. Special common use, such as a terrace, a site fence, scaffolding, a skip or an awning occupying the highway, requires a municipal licence or authorisation, with conditions (area, period, hours, furniture), and payment of the corresponding fee. Exclusive use, which excludes others, requires a concession.

In Palma, terraces and other elements on the public highway are regulated by municipal ordinances, and the authorisation is usually linked to the licence of the establishment and has a limited, renewable term. Occupying more space than authorised, or doing so without a licence, is an offence that may lead to a fine and an order to remove the items.

There is another, less well-known risk: encroaching on a track or public space with an enclosure, fence or building. The authorities may recover possession of public property of their own motion, without going to court, and the action is not time-barred. If you suspect that your enclosure occupies public land, it is advisable to check the boundaries with a technician before the Town Council does so.

The Technical Building Inspection (ITE) is a periodic technical report on the state of repair of a building: structure, façades, roofs, common installations and safety conditions. In recent years it has been gradually replaced by the Building Assessment Report (IEE), which adds accessibility and energy efficiency to the state of repair. In Palma, the municipal ordinance requires the assessment report for buildings aged 50 years or more, with exceptions and with a timetable according to the year of construction, and also for listed buildings.

The obligation falls on the owners, normally the owners' association in a building under the horizontal property regime. An unfavourable report requires the necessary maintenance or repair works to be carried out within the periods set, and non-compliance may lead to periodic penalty payments, enforcement orders and, in serious cases, the Town Council carrying out the works itself in default. Failure to submit the report in time may also lead to penalties.

There is a further practical effect: when selling or refurbishing an old building, the report is a document frequently requested. If your building is on the IEE timetable, you should check the exact deadline with the Town Council and engage the technician in good time, because the final weeks tend to become saturated.

It is subject to a protection regime that limits what you can do. In the Balearic Islands, historic heritage assets are protected by Law 12/1998 on the historic heritage of the Balearic Islands and by municipal and island catalogues. There are different levels: assets of cultural interest, catalogued assets and assets of local significance, each carrying different requirements. Planning catalogues establish grades of protection (integral, structural, environmental) which determine what interventions can be made.

In practice, any works on a protected asset, including its protected surroundings, usually require a heritage authorisation from the Island Council (through the heritage commission) in addition to the municipal licence. Demolition is prohibited or severely limited, and there is a heightened duty of maintenance: the owner must keep the asset in good condition, and may be required to carry out maintenance works and even be penalised for allowing it to deteriorate. Offences concerning catalogued assets are not time-barred.

On the other hand, there may be grants and tax benefits, and the possibility of compatible uses that help to finance refurbishment. Before buying or refurbishing an old property, it is advisable to check whether it appears in any catalogue and what grade of protection it has, because this completely changes what can be done.

Yes, in certain cases. The financial liability of the public authorities (Law 40/2015) requires compensation for damage suffered by individuals through the normal or abnormal operation of public services, provided that the damage is real, assessable and individualised and that they have no legal duty to bear it. In addition, State land legislation sets out specific compensation cases in planning matters (Article 48 of the Consolidated Text of the Land and Urban Regeneration Act).

The most frequent cases include annulment of a licence granted by the authorities where the applicant acted in good faith and had already invested, improper refusal of a licence that is later granted or declared to be due, unjustified delay in reaching a decision, planning changes reducing rights already vested, individual restrictions and damage from poorly executed public works. Compensation may cover actual loss (expenses and losses) and loss of profit, if proved.

The claim must be filed with the authority concerned within one year of the event or of its harmful effect becoming known (or of the annulment of the act being declared, if the damage arises from an annulled act). If it is dismissed or not decided, a judicial review action lies. Proof of the damage is decisive, so invoices, projects, technical reports and, where appropriate, an economic expert report should be gathered.

This is a common problem: the area, owner, use or perimeter recorded in the Catastro do not match those in the Land Registry or the actual situation. It has tax consequences (property tax is calculated on the cadastral data), legal consequences (it may block a sale or registration) and planning consequences (undeclared works may trigger proceedings).

The solution depends on the type of discrepancy. If the Catastro contains an incorrect item, you may request correction of discrepancies or rectification (Article 18 of the Consolidated Text of the Real Estate Cadastre Act), with supporting documents and, if necessary, a georeferenced plan; the procedure has a maximum decision period of six months. If the works have not been declared, a declaration of cadastral alteration must be filed, within short time limits, and whatever is necessary regularised. And if a different area is to be entered in the Land Registry, the procedure under Law 13/2015 is used, which incorporates the georeferenced graphic representation of the property and coordinates it with the Catastro.

This should be resolved before selling, mortgaging or inheriting. An uncorrected discrepancy may cause problems with the notary and the registrar, and works that appear in the Catastro but have no licence may trigger planning enforcement proceedings.

A change of use is the replacement of the use for which a property is authorised by a different one: for example, converting commercial premises into a home, a home into an office or a residential building into tourist accommodation. Simply wishing to do so is not enough: the new use must be compatible with the planning rules (area, zoning and conditions of the building), with the bylaws of the owners' association where there is horizontal property and with the applicable sectoral rules.

The usual process includes a prior planning enquiry to check compatibility, a technical project justifying compliance with the conditions of habitability, fire safety, accessibility and sound insulation for the new use, the planning licence for change of use (and for works, if any), processing of the activity where applicable and, finally, the first-occupation licence or the necessary certificates, such as the habitability certificate if the property is to be used as a home.

The risk of doing so without a licence is considerable. Under the LUIB, offences consisting of acts of use or changes of use without a licence are continuing in nature, meaning that for as long as the unlawful use lasts the limitation period does not begin to run. This means that the problem does not disappear with the passage of time and that the Town Council may act at any moment.

Stages must be distinguished. During the penalty proceedings, after the commencement decision, you may submit representations and evidence; this is the most important stage because it allows the facts, the classification, limitation, lapse and the amount to be disputed. At that point you may also acknowledge liability or pay voluntarily to obtain the statutory reductions, if it suits you.

When the decision is issued, the route depends on who issues it. At municipal level, acts of the Mayor, the Governing Board and the Full Council generally bring the administrative route to an end, so that an optional appeal for reconsideration (recurso de reposición) lies within one month, or a direct judicial review action within two months. If the penalty comes from a regional or island body, a hierarchical appeal (recurso de alzada) may lie, depending on the case, within one month. The time limits are strict and cannot be extended.

Filing the appeal does not automatically suspend the penalty or, above all, the demolition or suspension order, but you may request interim suspension if enforcement would cause irreparable harm, such as the demolition of a home. Before appealing, you should study the complete case file and realistically assess the prospects, the cost and the effect on the restoration procedure.

A new plan or an amendment to the planning rules (general plan, territorial plan, subsidiary rule, special plan) may change the classification or zoning of your land, the uses, the buildable area or the alignments. The first step is to find out how it affects you: whether your home remains within the planning framework, whether it becomes non-conforming (because it no longer fits the new rules), whether compulsory purchase or a land transfer is envisaged, or whether uses are restricted.

During the process there are opportunities for defence. Plans undergo public consultation, and owners may submit representations; this is the stage at which an error can be corrected or an alternative negotiated. While a plan is being processed, moreover, licences may be suspended in the affected areas for a limited period. Once finally approved, the plan is a general provision that may be challenged before the High Court of Justice within two months.

If the change in the plan reduces rights that were already vested, State land legislation provides for compensation in some cases. And if your building becomes non-conforming, extension or refurbishment works are normally limited, but the use and maintenance works may continue. An early review of the planning rules avoids unpleasant surprises.