It is the notarial document that takes place when the owner of a piece of land declares the construction of a new work on it (such as, for example, a new house, an industrial building, an extension of a pre-existing construction, a swimming pool, etc.) for the purpose of leaving legal proof of its existence, and ultimately registering the existence of such work in the Land Registry, thus coordinating it with the new physical reality of the land in question.
The following calculator offers the user/consumer the possibility of knowing with great accuracy the costs that he/she will have to face when formalizing the notarial declaration of a new construction. This calculator has parameterized both the notary and registry fees as well as the regional regulations in force depending on the location of the property that is the object of the declaration of new construction.
As indicated in the description of this entry, the declaration of new construction is the legal instrument through which the owner of a plot of land declares the construction of a new construction on it (such as a new house, an industrial building, an extension of a pre-existing construction, a swimming pool, etc.) for the purpose of leaving a legal record of its existence, and ultimately registering said deed in the Land Registry, thus coordinating it with the new physical reality of the property.
<ejemplo>Así pues, por ejemplo, si Lucía adquiere una finca en su localidad de residencia, consistente en una porción de terreno urbano edificable, en la que no existe construcción alguna, a los efectos de construir en ella una nueva vivienda unifamiliar en la que fijar su domicilio, una vez comience los trámites de la construcción, o en su caso, al finalizarlos, deberá otorgar una escritura de declaración de obra nueva, para así dejar constancia jurídica de esta construcción, y así poderla inscribir en el Registro de la Propiedad, para poner en valor su derecho de propiedad y protegerlo adecuadamente frente a terceros.<ejemplo>
In view of the above, by means of this instrument, the owner of a property is able to record that a new construction or building has been built on a piece of land he owns, and then, by registering it in the Land Registry, he gives publicity to this fact, thus providing the necessary legal security to his new property and adequately protecting it against third parties.
As can be seen in the preceding question, by means of the declaration of new construction, the owner of a piece of land legally declares the existence of a new construction carried out on it, for the purpose of updating the legal reality of the property with its physical reality, and once said deed is registered in the Land Registry, to coordinate the same with the new reality of the property.
Thus, in practice, as is evident, the owners of properties find themselves in the need to carry out new works or constructions on them, whose declaration is necessary, such as, for example:
In all these cases, it is necessary to carry out the deed of declaration of new construction in order to leave legal proof of the existence of this new construction or building, since only in this way it will be possible to adequately protect the same and, if necessary, to put in value in the case that now or in the future it is desired to sell the property (since as it is logical, the most probable thing is that nobody wishes to acquire a property in which a construction exists that is not properly declared and registered in the Registry of the Property).
In the declaration of new construction it is necessary to take into account that a plurality of legal rules, of a very different nature, will converge and must be taken into account:
In accordance with current regulations (Article 202 of the Mortgage Regulations), a deed of declaration of new construction may be granted, for the purpose of obtaining its registration in the Land Registry, when the owner of a plot of land or plot of land carries out new plantings or constructs new buildings or installation of facilities, whether fixed or removable.
Thus, in practice, when an owner of a plot of land or plot of land builds a new house, an industrial building, a warehouse, etc. on it, it will be necessary, in order to validate the legality of the new construction and protect it adequately, to grant the deed of declaration of new construction and register it in the Land Registry.
As it is logical, the declaration of new construction is an act of strict dominion, that is to say, that it can only be carried out by the owner or owner of the property.
As indicated in a previous question, the Mortgage Regulations allow the registration in the Land Registry of any kind of new planting, building or installation, whether fixed or removable.
Thus, on this basis, the declaration of new construction can refer to any type of construction that is carried out on the property, so that, although the most common in daily notarial practice is to see deeds of declaration of new construction that refer to homes, by means of this type of instrument many other constructions or buildings can be declared that are carried out on a property, such as industrial buildings, garages, farms, factories, porches, swimming pools, extensions to homes, etc.
As a general rule (and without prejudice to the particularity concerning old declarations of new construction that will be discussed in a later question), in order to be able to grant a deed of declaration of new construction, the fundamental requirement is that the construction or building to be declared has been built legally, that is, after obtaining the relevant administrative licenses, and after the preparation of an urban planning project for this purpose.
Thus, as is well known, at present, the construction and building sector is strongly regulated by administrative law, so that any owner of a plot of land or plot of land, if he wishes to make any kind of modification, construction or building on it, in order to do so legally, must take into account the following:
Therefore, on this basis, any person wishing to carry out a new construction or building on a plot of land he owns must first contact an architect, that is, a professional who will design and pilot the project, which, once prepared, must be submitted to the corresponding City Council, for the purpose of obtaining the relevant building permit, since only then will it be possible to legally construct a new building or construction on a plot of land or plot of land.
In the deed of declaration of new construction, basically the following statements shall be made:
In practice, the deed of declaration of new construction can be made at two different times:
In view of these procedural differences, it is necessary to point out that, in the notary's day-to-day work, it can be seen that:
In fact, even though its registration is not compulsory, when a new construction or building is carried out on a property owned by us, the most appropriate thing to do is to declare the new construction and register it in the Land Registry, since with this, we will adequately protect our right, we will give it registry publicity and, in the long term, we will greatly facilitate the management of our patrimony, since whether in the future we wish to sell that property, or to manage our inheritance in the future, these procedures will be much easier if the declaration of new construction is already made and registered.
<ejemplo>Véase que en la práctica, para la venta de cualquier inmueble, si la declaración de obra nueva no está hecha e inscrita en el Registro de la Propiedad, la formalización de la venta queda paralizada hasta que ello suceda, pues los compradores no desean asumir este riesgo antes de realizar la operación, y más en aquellos casos en los que la compra se realiza con la financiación de una entidad financiera, en cuyo caso, es prácticamente seguro que, sin la declaración de obra nueva inscrita en el Registro de la Propiedad, el banco no financiará la operación.<ejemplo>
Of course, when any person thinks of a declaration of new construction, he or she projects a scenario in which, on a plot of land where there is no existing construction, a new home is to be built on it.
However, this instrument also allows us to declare and register the modifications or extensions that are made to a pre-existing property, so that if, for example, any person is the owner of a house already built, and subsequently, some extension or modification reforms are made to it (to include a garage, a cellar, a porch, a swimming pool, an annex, etc.) it will also be necessary, in this case, to resort to the declaration of new construction to update the registry description of the property that appears in the Land Registry.
Indeed, it must be taken into account that carrying out a construction or building on a plot of land or plot of our property without obtaining the pertinent licenses and administrative authorizations, without a doubt, constitutes the commission of an urban infraction that will entail the imposition of substantial economic sanctions, as well as additional measures to repair the violated legality (such as, for example, the demolition of the works carried out).
However, it is no less true that, after a certain period of time has elapsed since these works or constructions have been carried out, if no sanctioning proceedings have been initiated in this respect, said infringement will expire, after which, if a series of requirements are met, it will be possible to proceed with the so-called declaration of "old" new construction and register said work in the Land Registry.
For this to be possible, in accordance with the applicable regulations, it will be necessary for the owner of the land where the new construction is to be declared, in order to prove the age of the property (and therefore the statute of limitations of the urban development infringement in accordance with the applicable autonomous community regulations):
In any case, in this case, the Land Registry, when registering this type of new construction, will inform the respective City Hall of the registrations, and will record in the registration, in the dispatch note, and in the formal publicity issued, the practice of said notification, for the purpose of informing the administration of the existence of this construction, so that it may carry out the appropriate administrative and tax actions.
The deed of declaration of new construction will be subject to the Transfer Tax and Stamp Duty, in its modality of Stamp Duty, with the following particularities:
In case you choose to execute your deed of declaration of new construction in our Notary Office, we also inform you that we have a tax management department that, for a small fee, can take care of the management of the tax liquidation, which will be necessary to obtain the registration of the deed in the Land Registry.
The grantors must always present their DNI at the notary's office. In the case of a foreigner, a passport and the corresponding NIE will be required.
In the event that the grantor is a company, a certified copy of:
a) Deed of incorporation (and, if applicable, subsequent deeds modifying the same, such as a change of company name, registered office, etc.) must also be provided.
b) Deed of appointment of the company's representative (such as, for example, the deed appointing the sole director of the company as such).
c) Deed of manifestation of beneficial ownership (document identifying the natural person who, if applicable, holds more than 25% of the company's share capital).
In any case, the notary's office will also carry out a telematic consultation of the Mercantile Registry to verify that all the information provided is correct, up to date and in force.
Authentic copy of the deeds of ownership of the property where the new construction is declared (such as a deed of sale, donation, acceptance of inheritance, etc.).
Document that will allow to obtain the cadastral reference of the property, and thus to be able to request the descriptive and graphic cadastral certification that will be necessary to obtain on the part of the notary office.
Administrative document containing the pertinent authorization from the City Council in which the property is located, which authorizes the owner to carry out the new construction, in view of the architectural project presented, and all of this in accordance with the corresponding urban and land planning regulations.
Document issued by a competent technician (i.e. architect), describing the new work and certifying that the work complies with the project approved by the competent administration, after obtaining the necessary building permit.
In the case of a completed new construction, this document must be provided, issued by the construction manager and the construction execution manager, in which it must be accredited that the construction for which the administrative license was requested is finished, and in accordance with the provisions of the project that was submitted and approved.
If it is necessary in view of the type of new construction, a document certifying that the mandatory ten-year insurance policy has been taken out, i.e. an insurance contract to cover any possible structural damage that the building may suffer during the 10 years following its completion.
Document that gathers the information related to the technical characteristics of the construction, such as the identification and location of the building, plans of the building, report of qualities of the materials used, etc. In practice, as it is an extensive document, it is often provided as an electronic file attached to a CD or USB.
Document containing the geo-referenced coordinates of the building and the parcel, which allows to verify that the building is located within the parcel in question. This document must be accompanied by the corresponding GML file and have a positive validation report from the Cadastre.
