The ancient Balearic doctrine regarding the loss or tacit waiver of prescription concerning buildings that are out of order or in a similar situation.

For years, this doctrine has been a highly controversial issue. Specifically, this doctrine affected buildings constructed without a license or with an annulled license against which the public administration can no longer act due to the expiration of the time established by urban planning regulations (prescription period) to act against such illegalities. These buildings are referred to as buildings in a state of being out of order, and the public administration must tolerate their existence.

However, the ancient Balearic doctrine of the High Court of Justice of the Balearic Islands held that any new work or improvement on these buildings implied a tacit waiver of the prescription, allowing action against all illegal constructions. This doctrine was also shared by the Community of Madrid.

While this doctrine aimed to discourage new illegalities, it simultaneously compromised legal certainty by nullifying rights acquired through prescription. The concept of prescription represents an essential element of the rule of law and the principle of legal certainty, and therefore, it warranted an analysis or review of the aforementioned doctrine, as at first glance, it seems strange to lose a de facto situation that has been consolidated over time. Although one can understand the rationale behind the Balearic doctrine, it is not surprising that this doctrine was a subject of discussion before the Supreme Court.

It was not until the Supreme Court ruling 1470/2022, dated November 10, 2022, that it shed light on this issue. In summary, it established that:

• Prescription is an acquired right linked to legal certainty

• New violations do not imply a tacit waiver of prescription

• The administration must tolerate prescribed buildings

• Only basic maintenance work is allowed, and if limits are exceeded, the public administration can only request the restoration of illegally carried out and non-prescribed works

Following this ruling, the High Court of Justice of the Balearic Islands modified its doctrine, recognizing that:

• Acquired prescription must be respected

• New violations are punishable but do not affect prior prescription

• The previous doctrine was contrary to the principle of legal certainty

In conclusion, it cannot currently be inferred that there is a tacit waiver of prescription due to new illegal actions, and the rights acquired through prescription must be respected.