# House Purchase - Swimming Pool Legality Issues and Access Issue (Servidumbre)



## StevejR1 (May 21, 2013)

Hi All,

Our house purchase in Spain is starting to gather pace 

We have recently returned from Spain, where we met with, and instructed, an abogado to act for us. We also applied for our NIE's, and opened a bank account. Had a survey done on the building, and generally got the ball rolling.

We were quite impressed with the abogado. We researched them thoroughly, got personal recommendations, and although I'll admit picking one, and getting it wrong, was my biggest worry in buying in Spain, in the end he seemed very competent...which is reassuring.

During our meeting, a couple of issues were raised.

Prior to the sale of the house, the seller had the property surveyed and the cadastro upgraded. This has been done, and shows all the buildings and boundaries correctly, including the swimming pool. I am being told that this is common when selling a property, as you don't upgrade the cadastro after each 'event' as it costs approximately €1,000 each time, so you wait until you are ready to sell and then do it. Is this correct?

What worries me, is that swimming pool legality is a big issue with me. And I have been assured that the seller had the licence for the pool, which was built in 2003, and he would forward to the abogado. However he can't seem to find it, although he is now trying to find out if his lawyer has it in his files. He has got the application for the license, the fees paid, and the builders invoice...but of course these don't prove that the license was granted.

This is concerning me, because I would like that license kept with the deed, in case of any challenge to its legality in the future. And I would like it in my possession.

My abogado does not seem too concerned though, as the pool is shown on the cadastro, including the square meterage. But should I accept this, or should I demand further proof of legality, and proof of the license?

I have now been told that the seller has applied to the Town Hall for a legality report on the property, and is also upgrading the title deeds via a 'Declaration de Obra Nueva' and is waiting for a 'certificado de legalidad urbanistica' from the planning department.

Is this all common practice, or is this something I should really be worried about? I know the learned members on here have a wide range of knowledge, and would appreciate your opinions.

The other issue, of which I had highlighted myself before meeting the abogado, was that the access to the property was via the neighbouring olive plot. A track is already in place, but we have no written legal agreement to use it. Obviously this needed to be addressed. So a meeting was arranged with the farmer who owns the plot of land.

He is a very accommodating fellow, who happily agreed to grant us access across his land, permission to concrete the track if we'd like, and didn't expect a penny in return for granting his permissions. He is prepared to give us a legal written right of way, by way of a 'servidumbre', which will be written into our deed.

My only questions here are.....

1, I want the actual track plotted on a map, and agreed that that is our legal right of access. This is so that that route can never be revoked from us ie to be given Servidumbre to our plot, but the route changed to a more inconvenient way at a later date...either by the present farmer, or a future owner of the plot of land. Is this likely to be agreed, or is it expecting too much?
2, Does the Servidumbre not also have to be written into the escritura/cadastro of the plot of land owned by the farmer?...so that any future buyer is aware that there is a legal right if way on the land they are about to buy?
3, Is a Servidumbre an unchallengeable agreement, and permanent, and can never be revoked?

I hope you can give me some advice, and appreciate your time in reading that rather long post.

Many thanks,

Steve


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## Pazcat (Mar 24, 2010)

> I am being told that this is common when selling a property, as you don't upgrade the cadastro after each 'event' as it costs approximately €1,000 each time, so you wait until you are ready to sell and then do it. Is this correct?


This is clearly what happens but it's not exactly correct or legal because if it's not registered then you are not paying the correct value of tax for it. Depending on the area and the age of the building the owner could face back taxes and fines so really it's best to do it straight away. Plus this also should be added to the deeds which again people like to wait to the last minute before doing.

I find it scandalous though that you can even register a building to the cadastro without the correct licenses but hey that's part of the reason it's a mess here.
Surely your lawyer has a copy of the nota simple? What does that say about the pool?

Never the less it should be easily fixable and more so because if a license was granted someone has to have a copy of this in the town hall. You would think at least.
Even if it's not licensed it may be fixable just more difficult depending on location.



> 'Declaration de Obra Nueva' and is waiting for a 'certificado de legalidad urbanistica' from the planning department.
> 
> Is this all common practice, or is this something I should really be worried about?


Yes it's common practice with tricky properties and the one to look out for is the 'certificado de legalidad urbanistica'. We have come unstuck upon requesting this and walked away from a property because of the implications of it. That said the property may be fine and if so I wouldn't worry too much about it.

To me it sounds as if this property is on rustic land? 
This would likely change a whole heap of things, just what I'm not sure as we haven't tried to buy a rustic property.

As for the track I can't really say.


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## ABERAFON (Aug 15, 2014)

Hi Steve,

You need to get some additional legal advice on the track and access as depending where you are buying I understand that tracks can be owned by the local council. i.e. we had a track behind our villa, not our access as we owned our access, but suddenly almost overnight a crew came in and concreted part of it. Bemused we went up to the lads working on it and asked who was paying - they said the local town hall as they had some money left form a job further down the valley and just told the lads to use up the concrete etc. here. I did check with the town hall and indeed the track was owned by them even though it ran through our neighbours large olive grove, who thought it was his. That was in the Competa area of CDS. Regards the swimming pool we had a villa built and we then found out at the notaries that the pool was on the deed but no license was there, we were told not to worry as it had been granted. Taking the advice of the notary and solicitor we went ahead and some years down the line when we sold the property it caused us no end of problems and cost 1000e to eventually get right but we got it by the skin of our teeth. I would get separate advice on this and make sure all your ducks are in a row before completing on this as there is a tendency in Spain to be casual on such matters but when the law catches up and changes you don't have a leg to stand on. Example is now the legislation on swimming pools in the campo. Think twice and then think again, this is a big investment in both money and personal terms, you have done all the right things so far even having a survey so paying out 500e for some additional advice is nothing to saving years of frustration if you get it wrong, good luck.


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## StevejR1 (May 21, 2013)

Pazcat said:


> I find it scandalous though that you can even register a building to the cadastro without the correct licenses but hey that's part of the reason it's a mess here.
> Surely your lawyer has a copy of the nota simple? What does that say about the pool?
> 
> Never the less it should be easily fixable and more so because if a license was granted someone has to have a copy of this in the town hall. You would think at least.
> ...


Thank you for the reply Pazcat.

Yes the house is in the campo, on rural land...but not far from a village, which is via a Tarmac road.

The cadastro shows that everything is in order...as he has had this updated. What worries me is the legality of how watertight that is? When he bought the property near 2000, it was two properties, but joined them together via an adjoining new part of the property. I'm told he raised a full project to do this...and I've yet to see the license for that yet either!!!

I have been told that he has applied for a legislation document from the town hall....I was wondering if that was the nota simple?

I think it is the fact that the owner seems to be having to apply for all these different things, that is implying to me that he is trying to legalise a problem...and if that is the case then it has to be 100% watertight, both now and in the future! or we will have to walk away.

I agree with you...if the licence has been granted, then the town hall must have a record of them, and copies must be able to be obtained.....for my own peace of mind, I want them with the deeds for future reference....so I feel this is something I feel he should be looking into, not just saying "I can't find it"

*the one to look out for is the 'certificado de legalidad urbanistica'*.....why should I be wary that that's been applied for? What does it do, and what circumstances would you need to apply for it?


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## StevejR1 (May 21, 2013)

ABERAFON said:


> Hi Steve,
> 
> You need to get some additional legal advice on the track and access as depending where you are buying I understand that tracks can be owned by the local council. i.e. we had a track behind our villa, not our access as we owned our access, but suddenly almost overnight a crew came in and concreted part of it. Bemused we went up to the lads working on it and asked who was paying - they said the local town hall as they had some money left form a job further down the valley and just told the lads to use up the concrete etc. here. I did check with the town hall and indeed the track was owned by them even though it ran through our neighbours large olive grove, who thought it was his. That was in the Competa area of CDS. Regards the swimming pool we had a villa built and we then found out at the notaries that the pool was on the deed but no license was there, we were told not to worry as it had been granted. Taking the advice of the notary and solicitor we went ahead and some years down the line when we sold the property it caused us no end of problems and cost 1000e to eventually get right but we got it by the skin of our teeth. I would get separate advice on this and make sure all your ducks are in a row before completing on this as there is a tendency in Spain to be casual on such matters but when the law catches up and changes you don't have a leg to stand on. Example is now the legislation on swimming pools in the campo. Think twice and then think again, this is a big investment in both money and personal terms, you have done all the right things so far even having a survey so paying out 500e for some additional advice is nothing to saving years of frustration if you get it wrong, good luck.



The house is just off a Tarmac road maintained by the town hall...but the track just runs across the neighbouring farmers land, and is not a maintained one. In fairness he has been very accomadating. And hopefully the Servidumbre will give us legal rights to access.

My views on the pool are exactly sourced from your experience!....being told it is legal because it is on the cadastro/escritura is all well and good, but in my mind if the Spanish government decides to rescind the rights to any buildings or pools put on the deeds without a licence, then we are in big trouble. And I'm not so naive to think that the Spanish government wouldn't do it...or naive enough to accept the 'it's ok' from anyone. If I'm not happy, then I will seek other advice.

The way I see it is this.....I'm not the most organised bloke, I'm not red hot on filling....but on selling my house in the uk, when the solicitor asked me for fensa certificates, guarantees, permissions, and warranties, I went and found them even though some went back 15 years!...because that's not the sort of thing that you don't file away safely!!! That is my attitude with a licence in Spain for a project and a swimming pool...I would not lose that in a million years!!!


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## Isobella (Oct 16, 2014)

Heard some real nightmares with access issues. I wouldn't even consider it in the UK. Even if you have legal rights some neighbours can harass you for years and it is very expensive going to court.


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## davexf (Jan 26, 2009)

StevejR1 said:


> Thank you for the reply Pazcat.
> 
> 
> I think it is the fact that the owner seems to be having to apply for all these different things, that is implying to me that he is trying to legalise a problem...and if that is the case then it has to be 100% watertight, both now and in the future! or we will have to walk away.


Hola 

With millions of houses to chose from, why keep on with this one when clearly there are potential skeletons to come out of the cupboard sometime in the future? Will you sleep well of a night or will you wake up from the nightmare of thinking that XYZ may happen tomorrow? 

In your case, from what I've read, the last six words should apply Quote "we will have to walk away." Unquote 

Find a house without the problems 

Davexf


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## extranjero (Nov 16, 2012)

Why does it cost so much to have the escritura and the catastral updated? If it's approx 1000 per item then it's obviously putting people off , if they are only doing it when selling.
Sounds like a money making exercise , like many of the obra menores.
I don't know of anyone who gets a licence for interior tiling or decorating
Major projects, yes of course .

If it were more reasonable people would be more likely to comply


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## Pazcat (Mar 24, 2010)

StevejR1 said:


> Thank you for the reply Pazcat.
> 
> Yes the house is in the campo, on rural land...but not far from a village, which is via a Tarmac road.
> 
> ...



Well like I said I'm not overly familiar with rustic properties but I know they can present a host of different issues.
One example is in Valencia you need 10,000m2 of land before you can even think about getting building licenses. I think it may be 5000m2 elsewhere.
Pools are another issue, in some areas you just aren't allowed to build one, people try and get around this by declaring it as a water deposit with recrational use. How this may play into your property I honestly couldn't say.

The cadastro is only one part of the picture, all it really is for tax purposes. What is more important is what the land registry and town hall have in their records.

The nota simple is really the first document you need to see, it will tell you all sorts of information regarding the property like legal ownership, land classification, if there are debts or mortgages on the property and it should describe the house and land amongst other things.
To be honest they should supply you with a copy but you may be better off requesting one yourself online, for a small fee.

The 'certificado de legalidad urbanistica' was where we came unstuck on the last property as it informed us there was a "Fuera de Ordenacion" on the property due to breaches in the planning law.
The end result being that the property will be "legally tolerated" but with an FdO in place which means you cannot do any works minor or major to it the property.
To remove the FdO would of been a case of either demolishing said buildings in breach or hiring a magical architect to somehow declare everything legal.
At this point the sellers or more rightly their agents became shirty and any fix they would do would of taken months so we walked.

So yeah the words to look out for in the certificado urbanistica are "Fuera de ordenacion".


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## Pazcat (Mar 24, 2010)

> Why does it cost so much to have the escritura and the catastral updated? If it's approx 1000 per item then it's obviously putting people off , if they are only doing it when selling.


I'm guessing it only cost thousands for back taxes that they have evaded.
Surely updating the cadastral is a simple and rather inexpensive matter if all is in order.
I don't know, surely someone has built a car port and added it, I doubt it costs more than the car port itself.


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## extranjero (Nov 16, 2012)

I think architects fees, notary, 1% of cost of work etc does add up to about 1000 euros per item, going by examples I've seen online.
Seems ludicrous and hardly encouraging people to do this, which is an added expense.
If so, it explains why many don't update their deeds and records at the catastral office.


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## snikpoh (Nov 19, 2007)

Pazcat said:


> Well like I said I'm not overly familiar with rustic properties but I know they can present a host of different issues.
> One example is in Valencia you need 10,000m2 of land before you can even think about getting building licenses. I think it may be 5000m2 elsewhere.


ISTR its 30000m2 in Murcia


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## StevejR1 (May 21, 2013)

davexf said:


> Hola
> 
> With millions of houses to chose from, why keep on with this one when clearly there are potential skeletons to come out of the cupboard sometime in the future? Will you sleep well of a night or will you wake up from the nightmare of thinking that XYZ may happen tomorrow?
> 
> ...


I think we are trying to stand on the realistic side of buying in Spain, and as a few people have said before...most properties have problems, but most can be overcome...we are giving them the opportunity to that, because I have a feeling we will experience some sort of problem with most properties.

We do also really like the house, and in 18 months of viewings, there has only been two that have really ticked our boxes, this one, and one other.
From a little research, the other property seems to have a few issues too...with an ecritura website showing a boundary different to what we've seen, and the pool not shown...might just be a glitch of the website, but it also might not.


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## StevejR1 (May 21, 2013)

extranjero said:


> Why does it cost so much to have the escritura and the catastral updated? If it's approx 1000 per item then it's obviously putting people off , if they are only doing it when selling.
> Sounds like a money making exercise , like many of the obra menores.
> I don't know of anyone who gets a licence for interior tiling or decorating
> Major projects, yes of course .
> ...


From what I'm led to believe, all work in the house, including changing tiles, bathrooms, kitchens, even adding additional sockets...all of it now requires a licence. If the scale of the works becomes big, then it is classed as a project.


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## StevejR1 (May 21, 2013)

snikpoh said:


> ISTR its 30000m2 in Murcia


I know when we looked in the Alora area every plot had 10,000m2, because that was the rule there...I don't think there is the restrictions where we are looking.


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## extranjero (Nov 16, 2012)

I just don't believe the majority of expats or Spaniards get an obra menor for every piffling thing they paint, alter, change or repair in their houses ( or outside, for that matter)
The bureaucracy would be a nightmare, and you'd have to have deep pockets.
If they made it more reasonable with their charges for the major things the council 
would make more money from that than from petty jobs which most ignore anyway.
The other daft thing is the variations in the different regions.


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## StevejR1 (May 21, 2013)

extranjero said:


> I just don't believe the majority of expats or Spaniards get an obra menor for every piffling thing they paint, alter, change or repair in their houses ( or outside, for that matter)
> The bureaucracy would be a nightmare, and you'd have to have deep pockets.
> If they made it more reasonable with their charges for the major things the council
> would make more money from that than from petty jobs which most ignore anyway.
> The other daft thing is the variations in the different regions.



I get the impression that the cost of applying for a licence isn't that expensive. But I take your point. But I guess if administered correctly it is a good way of keeping records on properties that tend to have buildings added to them, rather than just a new bathroom etc

I'm also not sure how much weight there is in the 'six year law'?....that, if you build something, and it is not objected too, or discovered, in six years, you can then apply to have it legalised on your deed?
If this was to happen, again there would be no licence applied to the improvement, but an exemption would make it legal....but could this retrospectively be contested?....and is this a common practice that is still ongoing today?


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## extranjero (Nov 16, 2012)

Around here it is 4 years, but some regions have changed these rules
Applying for a licence isn't expensive, but you also have to pay a percentage of the cost of the works,.
Also adding extensions, pools etc to the deeds is costly, hence Quite a few properties found to not match the description on the deeds.
As I said, I understand why licences are needed for extensions, walls etc, but not for decorating the lounge, or changing tiles in a bathroom or other small fry!


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## Pazcat (Mar 24, 2010)

The LOTUP changes for Valencia have made it 15 years now.


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## alborino (Dec 13, 2014)

extranjero said:


> Around here it is 4 years, but some regions have changed these rules
> Applying for a licence isn't expensive, but you also have to pay a percentage of the cost of the works,.
> Also adding extensions, pools etc to the deeds is costly, hence Quite a few properties found to not match the description on the deeds.
> As I said, I understand why licences are needed for extensions, walls etc, but not for decorating the lounge, or changing tiles in a bathroom or other small fry!


I've had a discussion on the subject of licences with my spanish family in Madrid and Andalucia. As far as they are concerned licences are only needed for structural changes. And for example even constructing a barbecue with a little chimney and roof in your garden would not need a licence. And if you had say a hole in the roof and the best repair was replacement you would just do it (an interesting loophole ).

They certainly laughed at the suggestion replacing floor tiles or painting walls would need a license. Although they all said you must take your responsibility to community (either a block of flats, a white village or an estate of houses) seriously and discuss anything that would impact neighbours with the committee and/or president. And that included having rubbish removed, noise or any other inconvenience.

It was suggested that an expat asking at the townhall might lead to a different result than that of a local, but they smiled when they said it. Interpret that as you will 

It was however clear that those in Andalucia are more open to bending the rules but to be fair one house was only declared legal when the townhall bowed to rich owners of villas despite them battling for years. So a degree of animosity there 

Just thought I'd share. But please don't blame me if you build a BBQ and the local gastapo get you :heh:


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## StevejR1 (May 21, 2013)

We are hopefully going to make a few changes if the purchase goes through....this would include knocking a door through into a room, knocking out a wall in a bedroom, and bathrooms, kitchen etc, and tilling and rendering......I'm told all this would get listed together on the one licence, to make it all legal. And I don't really have a problem with that to be honest....some others might not bother, a Spaniard might laugh at it, but at least it's all legit


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## Pesky Wesky (May 10, 2009)

extranjero said:


> I just don't believe the majority of expats or Spaniards get an obra menor for every piffling thing they paint, alter, change or repair in their houses ( or outside, for that matter)
> The bureaucracy would be a nightmare, and you'd have to have deep pockets.
> If they made it more reasonable with their charges for the major things the council
> would make more money from that than from petty jobs which most ignore anyway.
> The other daft thing is the variations in the different regions.


No, they don't, of course not, but the consequence is that if you get caught you'll have to pay the fine, which again is (usually) no big deal. You go to the Town Hall who more often than not will grant you the licence. You go back and work starts again. I know because it happened to us and if you want to know the story read on. If not, please go to next post.
We wanted to do several things to the house which included touching an outside wall, re surfacing the front "patio", knocking down an inside wall, replacing patio doors, repaininting etc etc, a fairly big job. I went to get a licence to be told that no more licences were being granted in our area. I was very displeased to say the least. In the urb there are approx 100 houses and of those 80% have had something done to them, balcony walled in, hedge taken down and walls built, kitchen extensions etc etc and just because we waited a few years we weren't going to be allowed?? All the work can be done without affecting other properties. We decided to go ahead. 
One day a neighbour couldn't get by in his car as a window was being delivered, blocking the road, and so he had to park and walk 30 metres. He reported us, the police came, stopped the work, OH went and got a licence for obra menor, and work continued.
The neighbour has reported 3 other people in the road for similar practices including a poiceman (who had his licence as he did his work a few years before us).
We wanted to get a full licence and pay, but in our interpretation were blocked by the town hall for no explicable reason.
Of course we will have problems when we sell, but hopefully not unsurmountable, and I think the amnesty about building on properties will have reached Madrid by then:fingerscrossed:


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## Pesky Wesky (May 10, 2009)

StevejR1 said:


> We are hopefully going to make a few changes if the purchase goes through....this would include knocking a door through into a room, knocking out a wall in a bedroom, and bathrooms, kitchen etc, and tilling and rendering......I'm told all this would get listed together on the one licence, to make it all legal. And I don't really have a problem with that to be honest....some others might not bother, a Spaniard might laugh at it, but at least it's all legit


It will be an "Obra Mayor" and you may need to have an architect involved because of knocking down walls.


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## StevejR1 (May 21, 2013)

Pesky Wesky said:


> It will be an "Obra Mayor" and you may need to have an architect involved because of knocking down walls.


We have already approached the surveyor who did the building survey. He will act as a project manager, and handle everything.

He has a very good reputation locally, and used to work for the town hall, so not only knows how to approach things, but has some handy connections too....he is also a very likeable fella  He's already walked around, and told us what we can, and can't do, and how we can do it.

I'm happy to give him a list of works, and let him manage the rest...source good builders, of which we have already had some good recommendations, and apply for all the legalities. But we would be there to oversee the works, which I think is helpful.


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## Isobella (Oct 16, 2014)

I hope this Surveyor who can handle everything wasn't recommended by the estate agent

I have friends in Coin who had a lovely guy who could take care of everything. Nothing too much trouble for him to sort out. They are still trying to sort things out after 5 years.


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## StevejR1 (May 21, 2013)

You are such a cynic Isobella! 

I've seen work that he is managing at the moment....a ground up, complete transformation of a ruin into a stunning house. Extending rooms, raising roofs, everything has been totally reformed....it is very nearly completion after nearly a year ....our project would be a walk in the park after that 

It strikes me that local reputation is a big thing in Spain. And once it is obtained, they seem reluctant to have it tarnished. Being consistently reliable and capable seems the best way to keep the good word of mouth going....and I find people are always more than willing to tell you of any dodgy individuals.


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## snikpoh (Nov 19, 2007)

StevejR1 said:


> We have already approached the surveyor who did the building survey. He will act as a project manager, and handle everything.
> 
> He has a very good reputation locally, and used to work for the town hall, so not only knows how to approach things, but has some handy connections too....he is also a very likeable fella  He's already walked around, and told us what we can, and can't do, and how we can do it.
> 
> I'm happy to give him a list of works, and let him manage the rest...source good builders, of which we have already had some good recommendations, and apply for all the legalities. But we would be there to oversee the works, which I think is helpful.


Hmmmm. I'm interested in this for a couple of reasons.

The first is that I was led to believe that surveyors don't really exist in Spain - you would use an architect. So is this one British per chance?

Secondly, to get the licence and to get the fianl sign-off, the town hall may insist on drawings. This will require an architect (registered in valencia etc. etc.). As part of the Architect process in Spain, your architect is also your project manager and charges you accordingly. So, in effect, you get a project manager for free.

It is the architects duty to list materials required, cost them (for the licence as much as anything), they also do periodic inspections and sign-offs and will also help with stage payments to the builders.


I hope that you're not paying twice.

Just make sure you have the licences displayed before ANY work is started. I've seen it too many times where the builder/surveyor says that either they have the licences or that they are not required .....


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## Pazcat (Mar 24, 2010)

The surveyor we used was Spanish from a Spanish firm, he was/is primarily an architect but it was a service that they offer. There were a few to choose from when we were looking.


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## StevejR1 (May 21, 2013)

snikpoh said:


> Hmmmm. I'm interested in this for a couple of reasons.
> 
> The first is that I was led to believe that surveyors don't really exist in Spain - you would use an architect. So is this one British per chance?
> 
> ...


Sorry, this is my mistake. You are of course correct, the 'surveyor' who did the survey was in fact an architect. He is Spanish, and a local, and generally uses local labour and companies. He is aware of his duties, and appears very competent in it from what I've seen. I would get him to do drawings, and do all the town hall submissions.

The project is a mixture of small items, and larger items...but he was undaunted with the big things, but also experienced enough to tell us when and where we couldn't do it if we made any suggestions....if wasn't a case of "it'll be ok"


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## StevejR1 (May 21, 2013)

Pazcat said:


> The surveyor we used was Spanish from a Spanish firm, he was/is primarily an architect but it was a service that they offer. There were a few to choose from when we were looking.


I want to use Spanish labour on the house. They are used to the construction types, know the building methods, and from what I've seen can achieve a very good finish. I've also heard that they are also hard working. And it is a very good way to mix within the community too. And basically we are moving to Spain...we want to immerse ourselves in Spain, rather than try to drag the British way over there.


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## Pazcat (Mar 24, 2010)

We have learned to take recommendations from colleagues because choosing one local or someone convenient has been hit and miss. Some are good and others you wonder why they bother at all.
To that end I don't care who we use as long as they come recommended, turn up with the equipment to do the job and don't take a nap on your lounge room floor.


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