Tacit Waiver of Urban Planning Prescription in the Balearic Islands

Urban planning prescription in the Balearic Islands has, for many years, been a particularly controversial issue in relation to buildings classified as out of planning order (fuera de ordenación).

The controversy focused on determining whether carrying out new works on buildings whose planning infringement had already become time-barred could imply a tacit waiver of the acquired prescription, allowing the Administration to reopen the possibility of acting against constructions whose illegality could no longer be pursued due to the passage of time.

Buildings classified as out of planning order and the prescription period

This doctrine concerned buildings constructed without a licence or with a licence that was later annulled, against which the Administration could no longer exercise powers to restore urban planning legality because the statutory prescription period had expired.

These constructions are then classified as buildings in a situation of out of planning order, meaning that the Administration must tolerate their existence, even if their origin is contrary to planning regulations.

In this context, prescription operates as a limit on administrative action and as a guarantee of legal certainty.

The former Balearic doctrine on tacit waiver

The former doctrine of the High Court of Justice of the Balearic Islands held that any new works or improvements carried out on a building that had already benefited from prescription implied a tacit waiver of the prescription previously obtained.

According to this interpretation, carrying out new works allowed the Administration to act not only against the recent works but also against the entire set of originally illegal constructions, even if these had already become time-barred.

This doctrine was also shared by the Community of Madrid.

Although this position sought to discourage new urban planning infringements, it raised significant concerns from the perspective of the principle of legal certainty, as it placed rights acquired through the passage of time at risk.

Legal certainty and the debate before the Supreme Court

The concept of prescription constitutes an essential element of the rule of law and the principle of legal certainty. It was therefore debatable whether a consolidated legal situation could be lost solely due to subsequent actions.

The controversy ultimately reached the Spanish Supreme Court, which ruled on the matter in Judgment 1470/2022 of 10 November.

Supreme Court Judgment 1470/2022

In this decision, the Supreme Court established that:

• Prescription is an acquired right linked to the principle of legal certainty.

• New urban planning infringements do not imply a tacit waiver of previously acquired prescription.

• The Administration must tolerate buildings that have benefited from prescription.

If works are carried out that exceed the permitted limits, the Administration may only require restoration in relation to the illegally executed and non-prescribed works, but not in relation to the original building that has already become time-barred.

This ruling definitively clarified the issue.

Change of doctrine in the Balearic Islands

Following the Supreme Court’s ruling, the High Court of Justice of the Balearic Islands modified its position, recognising that:

• Acquired prescription must be respected.

• New infringements may be sanctioned, but they do not affect the prior prescription.

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

Conclusion: no tacit waiver due to new actions

At present, according to the doctrine consolidated by the Supreme Court, a tacit waiver of urban planning prescription in the Balearic Islands cannot be inferred from the execution of new illegal works.

New infringements may be sanctioned and may require restoration with regard to the improperly executed works, but rights acquired through prescription must be respected.

Specialised legal advice

The correct interpretation of urban planning prescription in the Balearic Islands may be decisive in property transactions, regularisation processes, or urban planning inspection situations.

At our firm we advise property owners, investors and buyers in relation to:

• Analysis of buildings classified as out of planning order

• Assessment of urban planning risks during due diligence processes

• Defence against urban planning enforcement proceedings

• Evaluation of permitted works in buildings that have benefited from prescription

Each case requires a detailed technical and legal assessment, particularly in a region such as the Balearic Islands, where planning regulations and their judicial interpretation have a direct impact on the value and legal security of real estate investments.

Proper preventive legal advice can help avoid future disputes and protect rights acquired through prescription.