Types, practical implications and how to detect it before signing in the Costa Blanca
Out-of-ordinance status is one of the most unknown and most important concepts in Spanish urban planning law for international buyers. A property may be perfectly registered in the Property Registry, have deeds in order, pay the IBI (Property Tax), and have been inhabited for decades – and at the same time be in an out-of-ordinance situation. This situation does not necessarily prevent its sale, but it significantly conditions what the new owner will be able to do with the property.
Out of planning permission‘
A building is in a state of being out of planning compliance when it was legally constructed at the time – with the corresponding permit or under the regulatory conditions in force then – but subsequent urban planning has changed to such an extent that the building would no longer be permissible under current regulations.
It is important to highlight the nuance: being out of compliance with zoning regulations does not necessarily imply illegality at its origin. The majority of buildings out of compliance with zoning regulations were constructed with all the relevant licences. The problem is that the zoning plan has changed – due to a new land classification, a modification of building parameters, or the approval of a specific protection measure – and the existing building no longer meets the conditions that would be required today.
This is especially common on the Costa Blanca, where municipal planning has been revised on multiple occasions since the 1960s and 70s. The LOTUP of 2014 introduced new categories and protections, and coastal easements and other sectoral schemes have led to situations of being "out of zoning" in areas that did not previously have such restrictions.
The different types of out-of-order execution
Out of total or absolute order
This occurs when a building is radically incompatible with current planning regulations – for example, a dwelling subject to coastal protection easements, a dwelling built on what is now protected non-developable land, or a building that significantly exceeds current parameters.
In this situation, the property may be kept as long as it physically stands, but only works strictly necessary to maintain habitability and safety are permitted. The moment it suffers significant damage or falls into ruin, it cannot be rebuilt.
Out of partial ordering
It occurs when a building is incompatible with some parameters of the current planning regulations but not all. For example, a dwelling that complies with the land classification and residential use but exceeds the current permitted buildability or height, or a swimming pool built decades ago that would not be authorisable today.
In this situation, conservation and maintenance works can be carried out, and even some improvements that do not increase incompatibility. There is also a relevant possibility: if the out-of-compliance part is physically separable from the rest of the building, it may be possible to regularise the property by demolishing only that part. This option should always be assessed with the architect before ruling out the purchase.
Out-of-sequence development on developable land
Buildings on undeveloped developable land can be found in particularly complex situations. Planning regulations may have reduced building parameters compared to those in force when the building was constructed, or a change of use may have occurred. The implications vary significantly between municipalities.
Variability of criteria The scope of works that can be authorised in situations of non-compliance with planning regulations – both on development land and in other types of land – depends largely on the judgment of the municipal technician handling each case. These judgments vary between municipalities, between technicians in the same municipality, and over time. In some cases, significant renovations have been authorised, conditional on the owner waiving any increase in value in the event of future expropriation. Prior consultation with the town hall before purchasing or planning is essential, but its response is not binding.
Deemed out of order on non-developable land
As explained in the article about non-developable land on this blog, old illegal buildings on non-developable land constructed before LOTUP (2014) and with sufficient age for the right to restore to have expired can be registered with the status ‘assimilated to ’out of planning permission''. Only essential maintenance and safety works may be carried out on them, and under no circumstances can they be legalised or extended.
Illegal buildings: statute of limitations and risk of demolition
Critical risk For illegal constructions on urban land—built without a licence or in breach of licence conditions—the statute of limitations for the infringement is 15 years. As long as it has not expired, the administration can demand the restoration of legality, which involves the demolition of what was illegally built. On developable or non-developable land, town planning infringements never prescribe, regardless of the building's age. An illegal building on this land can be subject to demolition at any time in the future.
What can be done – and what cannot – in a property that is out of planning permissions
The specific limitations depend on the type of situation and the criteria of the municipal planning. But as a general guide:
What is generally permitted:
- Conservation and maintenance works that do not alter the volume or uses
- Repairs necessary to maintain habitability standards
- Changes to finishes and interior renovations that do not affect structural elements
- In cases of partial non-compliance: works that do not increase incompatibility, and possible legalisation through demolition of the non-compliant part.
What is generally forbidden:
- Surface or volume extensions
- Major structural consolidation works in total disregulation
- Works that increase the value of the building or prolong its useful life in a situation of total non-compliance.
- Reconstruction in the event of ruin or demolition subject to complete out-of-ordinance status
Municipal technician's criteria: The exact scope of what is authorised in each specific case of being out of planning regulations is not always precisely predetermined in the rules. The municipal technician handling the case applies their interpretative judgement, which can change over time, with a change of technician, or with the specific context of the project. That is why prior consultation with the council is essential before planning any works on a property that may be out of planning regulations – and it must be done specifically, not generally.
What affects the property market
- The property can be sold and bought — the out-of-order status does not prevent the transfer.
- The market value may be reduced - or not be so if the buyer is unaware of the situation
- Mortgage financing can be more difficult – some entities refuse to finance properties that are outside of planning permission regulations.
- Home insurance policies can come with special conditions.
Why does "out-of-order" not appear on the Property Register?
This is the trap that most frequently catches international buyers out: being "out of planning permission" (fuera de ordenación) is an urban planning situation, not a land registry one. The Land Registry records the ownership and legal encumbrances of a property, but it doesn't reflect its urban planning status. A property can be perfectly registered, with no encumbrances or mortgages, and be "out of planning permission" at the same time.
The simple note from the Registry does not provide information on the property's urban planning status. Neither does the cadastre. The only way to ascertain the real urban planning status of a property is through a technical analysis of the planning regulations, which must be carried out by an architect with knowledge of the specific municipal planning and applicable sectoral regulations.
Typical situations on the Costa Blanca
Typical situation 1: A German buyer is purchasing a frontline villa in Moraira. The villa was built 30 years ago, it has deeds, pays the property tax (IBI), and is perfectly registered. The estate agent does not mention any urban planning issues. Once purchased, the new owner wants to extend the terrace and add an outdoor spa area. The architect informs them that the villa is within the coastal protection servitude – a legal restriction that came into effect after its construction – and that it is in a 'fuera de ordenación' (out of planning order) situation. They cannot carry out any extensions or add any significant new auxiliary elements.
Typical situation 2: A Dutch buyer is purchasing a 1970s villa on a hillside in Jávea. Current planning regulations have reduced the buildability parameters compared to those in force when the villa was constructed. The property occupies a larger area than would currently be permitted; it is partially 'fuera de ordenación' (outside the regulations) due to exceeding the permitted footprint. The buyer wished to undertake a deep energy-efficient renovation with structural intervention. The architect informs them that works involving significant structural consolidation are not permissible in this situation, and that before any substantial works, the town hall may require the demolition of the part exceeding current parameters as a prerequisite.
Typical Situation 3: A Belgian buyer is purchasing a villa on land that was designated as developable when it was built. After decades of incomplete development, the planning has reclassified part of that land as non-developable. The villa is in a state of total de-sequencing. The buyer cannot carry out any significant renovations. When they consulted the town hall about a possible comprehensive renovation, the municipal technician's response was that any substantial work would be conditional on the owner formally renouncing any increase in value that might derive from a future expropriation of the plot.
Comparison table: types and their implications
Situation | Usual origin | Permitted works | Extension | Reconstruction in ruins |
Out of total ordering | Change of land classification, coastal easement or other sectoral protections that have arisen | Only maintenance and security. Variable municipal technician's criterion. | No | No |
Out of partial ordering | Excess parameters: buildability, height, occupancy | Conservation and improvements that do not increase incompatibility. Possible legalisation by demolishing the part that is out of compliance. | Conditioned or not | Conditional |
Out-of-sequence development on developable land | Change of planning, reduction of parameters | Varies by municipality: may be greatly limited or authorised with reform conditional on waiving overvaluation in expropriation. | In some cases | Conditional |
Assimilated out of order (not pre-2014 urbanisation) | Old illegal building with offence time-barred | Maintenance and security only. Not legalisable. | No | No |
Illegal construction post-LOTUP 2014 (non-developable land) | Without a licence on non-developable land | None — risk of demolition at any time | No | Does not apply |
Illegal construction under 15 years old on urban land | Without a licence or in breach of a licence on urban land | Risk of legality restoration (demolition) while statute of limitations has not expired | No | Does not apply |
Note: This table is intended as a guide. The specific implications depend on the particular municipal planning, the judgement of the municipal officer, and the individual circumstances of each property. The criteria applied may vary over time and between officers within the same municipality.
How to detect out-of-order before buying
Off-plan is not detectable through standard property due diligence. It requires specific technical analysis including:
- Analysis of current planning: classification and current grading of land and compatibility with built structures
- Analysis of supervening sectoral conditions: coastal servitude, PATIVEL, river protection, roads, Natura 2000 Network
- Comparison between built and authorisable: surface area, volume, auxiliary elements vs current parameters
- Prior consultation with the council regarding the urban planning situation and the scope of authorisable works
This analysis is part of the pre-technical inspection service carried out by Ensafer Arquitectura as an independent service for buyers before signing, in the municipalities of Jávea, Moraira, Benissa, Teulada, Altea and Dénia.
Out-of-order and price negotiation
Out-of-compliance status, when detected before purchase, does not necessarily mean the transaction must be aborted. In many cases, a property with partial out-of-compliance status can be perfectly suitable for the buyer's intended use – if they do not intend to extend or significantly renovate. What it should do is make the price negotiation conditional.
A property with an "out of order" status has a lower market value than an equivalent property without this condition because it limits renovation and improvement possibilities, reduces market liquidity, can make obtaining mortgage financing difficult, and may generate future administrative management costs. Preliminary technical analysis turns this information into a solid negotiation argument with an objective technical criterion.
Preguntas más frecuentes
Can a property in breach of planning regulations be sold?
Yes. Being out of compliance does not prevent the transfer of ownership. The property can be sold and purchased as normal. The out of compliance situation does not have to be included in the deed of sale, although some notaries include it if they are aware of it. A buyer who has not carried out a prior technical assessment can acquire a property that is out of compliance without knowing it—hence the importance of an independent technical assessment.
Can a property that is out of compliance with zoning regulations be legalised?
It depends on the type. In cases of partial non-compliance, if the incompatible part is physically separable, it may be possible to regularise by demolishing only that part. In cases of total non-compliance – due to a change in land classification or coastal servitude – regularisation is not possible as long as the conditions that generated it persist. Old illegal buildings on non-developable land can be regularised in a ‘deemed out of compliance’ status if they meet the age requirements, but this regularisation is not equivalent to full legalisation.
The difference between "fuera de ordenación" and "ilegalidad urbanística" relates to two distinct situations regarding urban planning regulations in Spain.
* **Ilegalidad urbanística (Urban illegality):** This refers to any construction or development that has been carried out without the necessary permits or in violation of the applicable urban planning regulations. It is fundamentally an illegal act. Buildings that are "fuera de ordenación" were not necessarily illegal at the time of their construction, but their current status makes them fall outside the scope of current planning rules.
* **Fuera de ordenación (Out of planning):** This is a specific legal status applied to buildings or constructions that were legal when they were built but are now considered to be against current urban planning regulations. This can happen when urban planning laws change, and a previously legal building no longer conforms to the new rules. For example, a building might be taller than current regulations allow, or it might be located in a zoning area that has since been designated for a different purpose (e.g., green space).
**Key Differences:**
1. **Origin:** Urban illegality arises from a direct violation of planning laws at the time of construction. Being "out of planning" means the construction was initially legal but has become non-compliant due to subsequent changes in regulations.
2. **Legal Status:** Urban illegality is inherently unlawful. A building "out of planning" was initially lawful, but its current situation is irregular with respect to current planning.
3. **Consequences:** Both can lead to sanctions, but the legal regimes and potential solutions might differ. For illegal constructions, the primary aim is often demolition or regularization. For buildings "out of planning," while they may also face restrictions, the approach might be different, sometimes allowing for continued use under specific conditions or prohibiting significant modifications.
These are distinct concepts that can overlap. Urban illegality implies that the building was constructed without the relevant permits or in breach of the conditions of the permit granted. Being out of compliance with planning regulations implies that the building was constructed legally, but subsequent planning has placed it in a situation of incompatibility. A building can be legal in its origin and be out of compliance. It can also be illegal in its origin and, if the statute of limitations for the infraction has passed (only on urban land and only for old ones), be regularised in a situation assimilated to being out of compliance with planning regulations.
Can the local council demolish a property that is out of planning?
In general, no – if the building was constructed legally. Being "fuera de ordenación" (outside of planning regulations) implies that the building must gradually disappear: when it reaches the end of its useful life or falls into ruin, it cannot be rebuilt. Forced demolition is not a usual consequence of being legitimately "fuera de ordenación". However, in the case of illegal buildings on non-developable land constructed after 2014, demolition may be required at any time. And for illegal buildings on urban land that are less than 15 years old, the restoration of legality may also be demanded as long as the infringement has not expired.
Does being out of planning permission affect the possibility of obtaining a mortgage?
Yes, potentially. Financial institutions value the property through an official appraisal, and the appraiser must reflect the property's urban planning situation in their report. An appraisal that reflects a "fuera de ordenación" status may result in a lower value than the purchase price, reducing the amount that can be mortgaged. Some financial institutions directly refuse to finance properties in a full "fuera de ordenación" status.
What is a coastal easement and how does it create situations of being out of the zoning plan?
Coastal protection easements are a strip of land 100 metres wide (extendable in certain cases) measured from the inner boundary of the foreshore, where the Coastal Law establishes significant restrictions on building and permitted activities. Many homes built on the Costa Blanca before the approval of the Coastal Law of 1988 — or under previous, less restrictive regulations — ended up within this easement with the new legislation, becoming "out of order" (fuera de ordenación) without any error or non-compliance on the part of their owners. The exact impact of the coastal easement on each plot must be verified with the Coastal Service of the Ministry for Ecological Transition.
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