what is the AFO certificate? is a very common question that keeps coming up.

If a rustic property has no first occupation licence or habitation license then your lawyer will probably request an AFO “Asimilado Fuera de Ordenación”

The passing of Decree 2/2012 by the Junta de Andalucía http://www.juntadeandalucia.es/boja/2012/19/3?lr=lang_es which was intended to regularize and recognize the situation of the properties located on land designated as rustic land (suelo no urbanizable).

The AFO by means of an administrative certificate states the legal situation of the property.

We need to clarify that this certificate is only applicable to properties situated on rustic land. Though there is a similar process for urban properties with no first occupation licence.

Further to the passing of the above Decree, all the different town halls have drawn up their own regulations for the issuing of this AFO certificate and the tax to pay to obtain the AFO However, the drawing up of the regulations has taken longer than they thought. At the moment, most town halls are in a position to deal with the requests received for an AFO certifícate. Some are still not on top of the situation such as Monda. Cartama was very behind as well.

The tax to pay to obtain this AFO certificate varies depending on the town halls in question, and the difference can be important depending on the municipality where the property is located.

To request this AFO certificate from the town hall, you have to present a certificate issued by a qualified technician, after he has visited the property in question, measured it, and obtained confirmation about certain technical issues related to the property.

How to apply for an AFO

Owners of the property need to apply for the certificate at their local Town Hall either in person or through a lawyer.

For houses already on the market, the application process needs to be started as soon as possible.

Alternatively, the process can be started once a buyer has been found however this may delay completion of the sale quite significantly and the speed with which certificates are issued depends on the area in which the vendor lives.

The first step involves employing an architect to visit the property to:

• Produce comprehensive plans of the property.
• Confirm that the property is habitable with a functioning bathroom and kitchen.
• Confirm that the property has legal electricity and water connections.
• Confirm that the property has proper waste disposal for sewage – a septic tank not a ‘black hole’ or ‘pozo negro’.

This information is then submitted to the Town Hall along with documents including a copy of the:

• Escritura,
• Catastro plans,
• latest IBI bill (paid)
• NIE certificates.

To summarize, the content of this AFO certificate implies the following:

– Confirmation that there are no administrative files on the part of the town hall against the construction (or any sanctions or demolition requests for that matter)

– Confirmation that any possible town planning irregularities that may have been incurred have already prescribed.

– Confirmation that the construction complies with the minimum requirements established as far as habitability and health conditions are concerned.

– Confirmation on the kind of works that can be carried out at the property: Only renovation works. In no case extension or structural works.

-Confirmation that the land is not protected.

Actually, this AFO Certificate does not change the legal situation of the property or add any extra rights to the existing ones. That is to say, the construction which complies with the above and is duly registered, does not become “more legal” by obtaining this document. However, this document will be from now on the written confirmation by the town hall in relation to the situation of properties on rustic land.

Furthermore, utility companies (water and electricity) are requesting this AFO document when receiving applications for connections and similar procedures. Likewise, should a license to carry out renovation works on an existing property be applied for, the town halls are also requesting to see the AFO certificate before they can issue the requested license.

Basic Rules in Andalucia on rustic land

1. It is not possible To build homes unless the intention is to engage in agricultural or livestock-farming activities in a professional capacity on the parcel.

2. Existing buildings may not be expanded and/or remodelled, both inside and outside. People have to purchase what is already built and no changes are legally allowed.

3. It is permitted to build with the intention to operate rural accommodation or a bed & breakfast, but it is necessary to carry out a preliminary operational project – called in Proyecto de Actuación -, that the Government of Andalusia must approve. This procedure can take over 6 months and it is difficult to obtain a positive response from the Regional Government.

4. It is necessary to take into account that most homes currently sold in the Andalusian countryside are illegal or irregular, i.e. if the authorities had done their work, they should not have allowed construction and, therefore, they should not exist.

The case is that, for most buildings, it is not possible to start any penalty procedures against buildings built without a licence or with an illegal licence on non-development land due to the time elapsed.

This means that legal responsibility is time-barred since over six years have elapsed since the end of construction. When we refer to non-development land with any special protection, the period of six years does not apply.

For Legal information on the above or a specific property please contact your Lawyer. if you are looking for a Lawyer experienced in these matters you can contact Francisco Gomez from Gomez Abogados  http://www.gomez-abogados.com/