What should be taken into account in the notarial declaration of new construction?

Only 30 years ago there were only a few legal standards for the Spanish new building declaration. Conditions for the entry of the notarised declaration of new construction in the land register could hardly be fulfilled.

An explanation can be found in the fact that there is a principle in the Spanish Civil Code according to which the owner of the land is also the owner of the structures that are firmly connected to it. This ensures that when a plot of land is sold, the ownership of the individual parts of the building is also transferred to the buyer.

As a result, many owners who were afraid of the costs associated with registration in the land register voluntarily waived the registration of new buildings in the past. However, since the 1990s, the new building declaration has been constantly upgraded by law and today there is an independent law in addition to the central government regulations on the Balearic Islands. This means that it is now almost impossible to use a property without registering the declaration of new construction. Especially in recent years, the legal and administrative requirements for the declaration of new construction have become even more difficult. For example, a declaration of new construction is a mandatory requirement for connecting a new building to the public electricity and water network.

In the Balearic Islands, the following documents must be submitted for the certification of a declaration of new construction: the original building permit (licencia de obra), the architect’s certificate with signature attesting that the construction has been completed (certificado final de obra del arquitecto), the GPS location data of the property (datos georeferenciados, in this case a technical architect must prepare a CD-ROM which is handed over to the land registry), the municipality’s certificate of completion of construction (certificado final de obra del Ayuntamiento), the certificate of habitability (cédula de habitabilidad), the licence for initial occupation (licencia de primer ocupación), which must be applied for from the competent municipality once the cedula has been obtained, the building register (libro de edificio), the ten-year insurance policy (seguro decenal) and the energy performance certificate (certificado de eficiencia energética)

The above documents must be presented in original to the notary’s office. The first notarized copy of the deed will be accompanied by certified copies of all documents.  The so-called bulletin (boletin) only gains great importance after the declaration of new construction has been recorded. This is a technical acceptance certificate from established craftsmen, which in turn is a prerequisite for the connection of electricity and water to the public utilities. The notarial certification of a declaration of new construction is taxed with a stamp duty of 1.2% on the value specified in the certificate for the new construction.

A special case is the declaration of a new building under construction (obra nueva en construcción). In this case, an architect confirms that the building permit and the planning documents correspond. The declaration of new construction is then entered in the land register according to the progress of the building (example: 30% of the construction has already been completed and is recorded in the land register). As a rule, this type of declaration of new construction is used for the construction of housing estates.

In summary, it can be said that over the course of time, the requirements for the recording of a declaration of new construction have been constantly extended. It is therefore no longer a simple, voluntary declaration by the owner of a property. Rather, a number of proofs must be provided and conditions fulfilled and the advice of an expert should be consulted for the preparation of the notarial declaration of new construction and its registration in the land registry.