Is the villa legal? Check the paperwork before you fall for the view.

At this end of the market the biggest risk usually isn't the price. It's whether the house you're standing in is the house the town hall approved. A villa can have a clean title, a happy seller and a lovely view, and still have a guest flat, a pool, a garage or a basement that was never licensed.

None of that has to stop a purchase. But you need to know which kind of problem you're looking at before you sign anything, because some problems fade with time and some never do.

Why it matters more on bigger houses

Big houses get added to. A terrace becomes a glazed room, a garage becomes a gym, a store under the pool becomes a guest suite. Every one of those is a building work, and in Andalusia building works need a municipal licence or, for minor jobs, a declaración responsable filed with the council (articles 137 and 138 of Ley 7/2021, the LISTA).

The other risk is the land itself. A detached villa in the hills behind Marbella, Benahavís or Estepona can sit on land classed as rústico, where the rules are far tighter than in an urbanisation. The house may look exactly like its neighbours and be in a completely different legal position.

Marbella's planning history, briefly

Marbella is the case everyone has heard of, so it's worth getting the facts straight. The town's general plan dates from 1986. In 1998 the council treated a revision as approved by administrative silence, but the Junta de Andalucía never approved it and the courts refused to treat it as in force.

A new plan was approved by the Junta in 2010. In late 2015 the Tribunal Supremo annulled it, ruling that a town plan can't be used to legalise what was built illegally. That brought the 1986 plan back, later partly adapted to regional law in 2018.

On 18 September 2026 Marbella's council gave final approval to a new Plan General de Ordenación Municipal (PGOM), which it describes as the first in Andalusia adapted to the LISTA. The detailed plan that applies it street by street, the Plan de Ordenación Urbana (POU), is still being drafted. So for a specific house, what counts is what the town hall says about that plot today, not what an agent says the new plan will do. Our Marbella guide covers the town itself.

The six-year rule, and where it doesn't apply

Under article 153 of the LISTA, the council can only order works to be undone while they're under way and within six years of their completion (or from when they became visible from outside). After that, it can't order demolition of an ordinary extension on ordinary land. The LISTA covers all of Andalusia, so the same rule applies in Benahavís, Estepona, Mijas and San Roque, where Sotogrande sits.

There's a list of exceptions where there is no time limit at all. These include anything on public land or in a protection easement, such as the coastal strip; rustic land with real risk of flooding, landslip or similar; rustic land in the coastal influence zone; listed heritage buildings; green zones and open spaces; and plot subdivisions on rustic land. If the unlicensed part of a house falls into one of those, time doesn't help. On rustic land protected by other laws, the six years still bind the council, but the body behind that protection may have its own deadlines.

The six years run from when the work was finished, and someone has to prove that date. Ask your lawyer and surveyor to pin it down from documents, old aerial photos or the cadastre, not from the seller's memory.

What “AFO” means

Once the six years have passed, an unlicensed building is in a status called asimilado a fuera de ordenación, or AFO (article 173 of the LISTA). The council has to formally recognise it, on an application backed by a technician's report. That report covers the land classification, the completion date, any natural risks, and a certificate that the building meets minimum safety and health conditions (articles 405 to 407 of the regulation, Decreto 550/2022).

The council asks other bodies for reports, including the coastal authority where relevant. It has six months to decide, and if it says nothing in that time, the answer is no. Until recognition is granted, the building can't be connected to basic services and no works can be done on it, other than what the council orders for safety.

Recognition isn't legalisation, and the law says so in terms (article 174). What it does give you is a recorded status: it's noted in the land registry, the house can be lived in, it can be connected to water, power and drains if only the hook-up is needed, and you can get licences for maintenance and refurbishment. What you can't do is add volume or floor area. AFO isn't available at all where the six years haven't run, or where the land carries a real natural risk that hasn't been dealt with.

Ask your lender and your insurer in writing how they treat an AFO house, or a house with an unrecognised extension, before you rely on either.

The licences to see

For a house built or extended with permission, there's a paper trail. The licencia de obras approves the work. The certificado final de obra is signed by the architect and the site technician when it's finished (Ley 38/1999). Then occupation is authorised, which under the LISTA is now usually a declaración responsable de ocupación o utilización rather than a separate licence.

That last document matters day to day. Article 142 of the LISTA says utility companies need it, or an AFO resolution, before they sign a permanent supply contract. A temporary builder's supply is only meant to last as long as the works licence, so ask to see the supply contracts.

There's also a route for very old buildings. Houses finished before 1975 on non-developable land, and some buildings whose limitation period had already expired by 1990, are treated as if licensed for their use at that date, and the owner can ask the council for a certificate saying so (LISTA, transitional provision five). Later works on them aren't covered.

Cadastre, registry and what's actually there

Three records describe a Spanish house, and they don't always agree. The Catastro is the tax and mapping record. The Registro de la Propiedad is the legal record of ownership and charges, and where the two conflict, the registry's legal statements prevail (article 3 of the Catastro law).

Neither is a survey. The built area in the registry comes from the declaración de obra nueva, the deed that records the building. To register one for a finished building, the notary and registrar need the licence and a technician's certificate (article 28 of the national Land Law). For older works where the deadline for enforcement has passed, there's a separate route, and the registrar then notifies the council, which records the building's planning status alongside the entry.

If the floor area on the ground, in the cadastre and in the registry don't match, someone needs to explain the gap. Your surveyor measures, your lawyer reconciles, and the difference is either licensed, time-barred, or a problem. The survey guide and what a good lawyer checks go into how each of them works.

Beachside homes and the coastal line

The Ley de Costas puts a protection easement of 100 metres inland from the shoreline boundary, the deslinde, with new homes banned inside it (articles 23 and 25). Land that was already urban in 1988 has a 20-metre strip instead. Works on coastal public land or in its protection easement have no time limit under the LISTA, and the coastal law has its own rules for homes already there.

For anything near the sea at Estepona, Marbella or Sotogrande, ask your lawyer to check where the deslinde runs against the plot and what that means for the house.

Flood zones

The government's flood map, the SNCZI, is public and shows mapped flood zones and river public land. A dry riverbed at the end of the garden is worth a look on it. A house on flood-risk rustic land can fall outside both the six-year limit and AFO, so this is a planning question as well as an insurance one.

What your own people do

Your lawyer, who should act only for you (see your lawyer, not the agent's), checks the registry, the cadastre, the licences, any open enforcement entries and the town hall's planning information. Under article 10 of the LISTA, owners have a right to a written report or cédula on a plot's planning status, and notaries can ask for the same, including any AFO status or enforcement measures.

Your arquitecto técnico checks what's actually built against the licensed plans, measures it, dates the additions where possible, and tells you what any fix would involve. Get both before the arras contract, not after. On a new build the paperwork is different, and new build or resale covers that.

When to walk away

An old unlicensed pergola on ordinary urban land is often a paperwork job. Some problems aren't. We'd walk away if the unlicensed part is in one of the no-time-limit categories, including the coastal strip, flood-risk rustic land or green space. We'd walk away if there's an open enforcement case recorded against the property, if the work is under six years old and the seller won't legalise or remove it before completion, or if the council has refused AFO.

We'd also walk away from a seller who won't let your lawyer and surveyor look properly. A good house survives the checks. There's more on this in when we'd tell you not to buy, and if you're looking at the top of the market across Marbella, Benahavís or the Golden Mile, our private service is built for exactly this.