El régimen jurídico de obras y usos alegales amparados en la caducidad ganada. Normas urbanísticas vs. Tribunal Supremo (sentencia 1.470/2022, de 10 de noviembre)

Resumen

The administrative inactivity in matters of urban discipline to restore the legal order disturbed by the carrying out of works, constructions, buildings, facilities and other uses of the land not permitted by the territorial and urban regulations causes that, after the term, the legal period expires. The regulations grant the administration to react to such urban planning transgressions, allowing by law the subsistence of the works or facilities erected as a consequence of such urban planning violations. This tolerance does not imply, in any way, that the ex lege legalization of illegally erected constructions occurs, it only reaches the expiration of the action to reestablish urban planning legality. The problems generated around the calculation of these deadlines have generated a profuse jurisprudential production. The ruling of the Supreme Court, 1470/2022, of November 10, is its latest expression: this expiration is not lost when works are carried out on a building, construction or installation in a situation assimilated to the out-of-regulation regime (AFO, in Spanish, acronym for building «assimilated to those out of order»). They exceed mere conservation, decoration, safety and health; rejecting the conclusion reached in the appeal ruling, which erroneously applied the waiver of the prescription gained by tacit will of article 1935 of the Civil Code, a waiver that was manifested by the performance of those later works. Now, in the ruling that is the subject of this comment, two conclusions are listed, in addition to the one expressed, that do not completely match the urban planning regulations of numerous Autonomous Communities, which allow these consolidation works, as well as the prescription of urban uses, in any of its legally accepted forms