Article 319 Spanish Criminal Code: Unlawful Building and Planning Offences

Article 319 of the Spanish Criminal Code punishes developers, builders and supervising technicians who carry out works of urbanisation, construction or building that cannot be authorised, on land set aside for roads, green space or public property, or on non-developable land. The provision matters to foreign purchasers on the Costa Blanca for a reason unrelated to the prison sentence: the third paragraph empowers the court to order the demolition of the works at the expense of the offender, with compensation reserved to third parties in good faith, and to confiscate the profits of the offence whatever transformation they have undergone.

Wording of Article 319 of the Spanish Criminal Code

Elements of the offence

1. A perpetrator who is a developer, a builder or a supervising technician. A purchaser who did not carry out the works is not a perpetrator under this article, although the property may still be demolished.
2. Works of urbanisation, construction or building that cannot be authorised, that is works for which no licence could lawfully be granted, as distinct from works carried out without a licence that could have been granted.
3. The classification of the land: set aside for roads or green space, in the public domain, of recognised value or specially protected under the first paragraph; non-developable under the second.
4. Intent, which requires knowledge of the classification of the land. This is the element on which the position of a foreign developer or purchaser most often turns.

Defence strategy

The works could have been authorised. The offence requires works that cannot be authorised, not merely works carried out without a licence. Where the land admitted the use subject to a licence, where a licence was granted and later annulled, or where the works were subsequently legalised, the criminal offence is not made out and the matter belongs to the planning authority. The defence obtains the complete planning file and the municipal plan in force at the time of the works, because the classification frequently changed during the process.

Knowledge of the classification. For a foreign developer or a purchaser who commissioned works, knowledge of the classification cannot be assumed. Where a licence was applied for and granted, where a technician certified the position, or where the municipality tolerated comparable works nearby, the mental element is materially weakened. The correspondence with the town hall and the architect’s certificate are the decisive documents, and they must be preserved from the outset.

Resisting the demolition order. Demolition is discretionary and must be reasoned, and the article expressly requires that the competent administration be heard and that compensation to third parties in good faith be secured. Where the property has been sold to a purchaser who acted in good faith, where the works are structurally integrated with lawful construction, or where the administration itself does not seek demolition, the defence opposes the order and, in the alternative, seeks its conditioning on guarantees. This is ordinarily the most valuable part of the defence.

Limitation and the completion of the works. The limitation period runs from the completion of the works, and identifying that date precisely is often decisive because these prosecutions begin years later. The defence establishes completion from the certificate of works, the connection of services, the entry in the property register and the aerial imagery of the site, and where the period has elapsed the prosecution is barred whatever the planning position of the building.

• Article 320: planning offences by officials
• Article 325: environmental offences
• Property matters: legal service
• Spanish-language entry

This entry is provided for information only and does not constitute legal advice. The application of any provision depends on the circumstances of the individual case and requires examination of the case file by a qualified lawyer.