Today I would like to deal with a topic, which is sometimes difficult to explain, related to the start of the prescription period for illegal constructions (those built without a licence). It is common to receive queries from clients who have certain doubts about proving whether a construction is time-barred or not. As we will see below, this is by no means an easy task.
As some of you may know, the limitation period for illegal works starts from the moment the illegal works are “finished” and “reliably” proven. Beware of this concept as the law states the following:
The period shall run from the day on which the acts are finally completed. For this purpose, the work shall be deemed to have been fully completed when it is reliably demonstrated, objectively and rigorously, unquestionably and with certainty and accuracy, by any means of proof, the burden of which shall be on the party who alleges it.
We would agree that these are two apparently obvious concepts, but we should not fall into the error of just passing any proof. For example, in the case of an administrative file in which we are required to demolish a construction work, attaching photos of the family where a family member appears as a child and who is now an adult, does NOT serve as proof.
What the Law establishes is that it must be an “undoubted”, “certain” and “accurate” instrument. This has been very well defined by the courts and it has been established that valid i) Notarial acts and ii) Certificate of Completion signed by a competent technician and stamped by the corresponding Official Association. Ruling out that the statements of neighbours, invoices or receipts paid are not sufficient proof to establish the completion of the works. But what about aerial photos? It is curious, but in the last judgments analysed, the Court doubts that these are sufficient to determine the completion of the works.
In conclusion, we can say that the Courts are becoming increasingly rigorous and strict in the acceptance of evidence for the prescription. This interpretation undoubtedly affects those constructions in rural areas in which the statute of limitations no longer applies to illegal works completed after 2018, moving the debate to urban dwellings where the statute of limitations does apply.
My recommendation, if you are a seller with a property on urban land and you carry out illegal works, make a notarial act of the illegal works and wait 8 years until the statute of limitations expires. On rural land, complicated.