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New build

This is an act declaring the construction (or modification) of a building that has been or is being built on a plot of land. The act serves to record the construction that has been built on a plot of land, or the remodelling or refurbishment performed, in the Land Register.

- What is a new build declaration?
- Forms of new build declaration
- Is the new build declaration mandatory?
- How is the notary involved? Oversight of legality

What is a new build declaration?

It is the declaration in an authentic public instrument by the owner or all the joint owners of a property recording the fact that new actions, construction of buildings, improvements, or other analogous new works have been begun or concluded. This instrument may be registered in the Land Register, so as to achieve concordance between the register and the legal reality outside the register records. In the case of buildings, it will record the number of floors, the surface area of the land occupied; the total number of square metres constructed and, if specified in the approved plans, the number of elements open to independent exploitation.

Forms of new build declaration

It may be performed in two ways depending on the phase of construction:

  • Completed new build: When the construction is fully completed.
  • New build under construction: A new build under construction declaration is typically performed when the property developer needs finance from the bank to perform the construction, and establishes a mortgage over the property under construction.

When construction work is completed, the owner will need to declare that it has been concluded by means of a notarial act known as the works completion act.

Is the new build declaration mandatory?

In the case of a builder or property developer, in other words a business, the new build declaration is mandatory. In the case of a private individual building on his own land for his personal use, the new build declaration must be performed in order to arrange utilities contracts, and as a mandatory requirement if selling, leasing or requesting a mortgage loan from a bank.

How is the notary involved? Oversight of legality

In the new build declaration the notary oversees legality, ensuring that the construction has been performed with all licences, authorisations and requirements imposed by law, as summarised below:

1. Requirement for the Local Council Licence authorising the construction on the basis of plans submitted by the owner and drawn up by an architect or other competent professional. With regard to older constructions all that will be required is accreditation of the age of the construction for the purposes of any possible urban planning violation having lapsed under the statute of limitations (typically 4 years, although for constructions after 6 May 2000 the waiting period is 10 years for the ten-year insurance), by means of the 4 methods cited in law:

  • Certification by the local Council.
  • Certification by a competent technician.
  • Notarial act describing the property.
  • Descriptive and graphical land survey certificate of the property.

2. Competent technician requirement: A distinction must be made:

  • If the building is under construction: the technician must accredit that the description of the new build construction recorded in the public instrument complies with the plans for which the licence was issued at the time in question.
  • If the building has been completed, the technician must accredit that the works have been completed and comply with the plans for which the municipal construction licence was obtained.

Geographical referencing coordinates: In any case, it must be taken into account that in order to register any completed, new or old buildings, whose documentary declaration and application for registration is presented in the Land Registry, it will be required that the portion of occupied land is identified by its geographic reference coordinates.

3. Ten-year insurance requirement: The law requires that damage and surety insurance be arranged to guarantee compensation for any material damages caused by faults or defects in the building for a period of 1, 3 and 10 years, although today only the ten-year insurance is required for faults or defects arising in or affecting the foundations, the supports, the joists, the top slabs, the load-bearing walls or other structural elements that would directly compromise the mechanical strength and stability of the building. The other two insurance policies (annual and triennial) have not yet taken effect. The characteristics of this ten-year insurance would be:

  • In public instruments recording new build properties under construction, the mandatory nature of confirmation with the register of conclusion of the work must be placed on record, at which point these guarantees will be demanded.
  • Demanded only for buildings the primary purpose of which is residential.
  • The ten-year insurance requirement does not apply to individual self-builders (whether natural or legal persons) for the construction of a detached home for own use (whether a first or second property, and even if it is merely a temporary residence). In the case of transfers inter vivos within 10 years, the self-builder, unless released by the acquiring party, following accreditation that the property has been used, will be obliged to arrange the ten-year guarantee for the remaining period of the 10 years.

4. Construction Book requirement: The Construction Book must be handed over to the end users of the building, and unless it is not required due to the age of the building, it must be submitted to the Land Registry for registration.

5. Habitability certificate or Initial Occupancy Permit: The legislation of certain autonomous regions requires presentation of the habitability certificate or initial occupancy permit for a declaration of new build construction.

6. Building energy efficiency certificate: This must be signed by a competent technician, providing information only on the energy efficiency of building. The maximum validity period is 10 years.

7. Technical Inspection of the Building: The legislation of some autonomous regions requires that any building that touches the public thoroughfare (and some other assumption) and that has certain years of seniority (term fixed by the autonomous community itself) must pass a technical inspection to ensure the safety.

We would in any event advise anyone to contact a notary for consultancy as to the best form and procedure to comply with all the legal requirements.


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