Owners who in good faith purchased a home on land not developable, have found an escape route to get these are considered legal out of order. In July 2016, the Andalusian Parliament approved an amendment to the Andalusian Land Law (LOUA) through which it allowed homes that were built on plots and that were built more than six years ago, could be regularized. The urban figure under which they would be framed would be that of assimilated out of planning (AFO).
This solution, although much applauded by those affected, still does not convince the association Soha (Save our home in Axarquía), which considers it a step forward, but not enough, since they think that the houses were safe in a situation of illegality, although they were acquired with all the permits, authorisations and registers.
For this reason, they have been working and looking for a legal solution that would allow them to have their homes considered legal outside of the ordinances. To this end, they have resorted to Law 39/2015, of 1 October, of the Common Administrative Procedure of Public Administrations which establishes the “exceptionality of the review of the license by the City Council.
Therefore, the municipalities are not obliged to review the licenses, thus becoming legal, which is the way that buyers in good faith had acquired them. Precisely, the mayor’s office of Alcaucín has initiated this path taking a score of files to the Advisory Council whose members have given him the reason. Although it is not binding if it is mandatory.
However, this loophole can not currently be applied in many municipalities because it is necessary to have approved the progress of the General Urban Development Plan. The houses also have to have more than 6 years of prescription. Thus, article 110 establishes that “the faculties of revision cannot be exercised when by prescription of actions, by the time elapsed or by other circumstances, its exercise is contrary to equity, good faith, the right of individuals or the law”.
With respect to those houses that already have demolition order, it has been the case, of owners who have been appealing for more than a decade and has gotten the judge to allow him to apply for the AFO, since the judge made a request to the municipality of Alcaucín, asking if there was a possibility of regulation, and if there was because it met the requirements to be assimilated out of order, then the owner requested it and saved his home,
It is hoped that this ruling can establish jurisprudence. since this year the Provincial Court of Malaga seems to have decided to join criteria in cases of homes with no licenses when ordering the demolition or regularization.