Building without a licence (art. 319 CP): when it stops being a fine and becomes a criminal offence

The sequence repeats itself: a municipal inspection report, a neighbour’s complaint or a planning enforcement file that had been dormant for months, and suddenly a summons from the criminal court. Almost everyone arrives with the same sentence ready —"I had no licence, but it was my own land"— and with the conviction that the matter can be settled by paying. Art. 319 CP does not work that way, and it does not punish what most people think it punishes.

You have been reported for building without a licence: the question that decides the case

Art. 319 CP does not punish building without a licence. It punishes carrying out urbanisation, construction or building works that could not be authorised on certain classes of land. The difference is not a nuance: building without asking for a permit something that the planning rules allowed is an administrative infringement, with its fine and its order to regularise. Building something that the planning rules would never have authorised, on the land listed in the article, is a criminal offence.

The first defence question is therefore not whether there was a licence, but whether the works could have been authorised on the day they were carried out. The answer lies in the planning rules in force on that date, in the classification of the plot and in a technical report, not in the inspection report.

"Unauthorised" and "incapable of authorisation": where the line runs

Unauthorised works are those carried out without the permit the rules required. Works incapable of authorisation are those that no permit could have covered, because they contradict the planning regime applying to that land. The first are corrected through the administrative route; the second open the criminal offence.

Two practical consequences follow. First, obtaining the licence afterwards, where the works could be authorised, removes the central element of the offence. Second, the fact that the council processed and even granted a licence does not close the matter by itself if the works could not be authorised, because the problem then moves to the official who reported favourably on it or voted for it, who answers under art. 320 CP —we cover that in the analysis of malfeasance and influence peddling and in the article on arts. 319 and 320 CP—.

The two classes of land in art. 319 CP and their penalties

The article distinguishes two situations, and the gap between them decides whether the sentence falls inside the range where suspension becomes difficult:

• Art. 319.1 CP: works incapable of authorisation on land earmarked for roads, green areas, public domain assets or places whose landscape, ecological, artistic, historical or cultural value is recognised in law or by the administration, or which have been treated as specially protected on those same grounds. Penalty of one year and six months to four years in prison, a fine of twelve to twenty-four months and special disqualification from a profession or trade for one to four years.
• Art. 319.2 CP: works incapable of authorisation on non-developable land. Penalty of one to three years in prison, with the same fine and the same disqualification.

In both cases the fine has a valve that is often overlooked: where the profit obtained from the offence exceeds the amount resulting from the monthly fine, the fine becomes one to three times the amount of that profit. On a development of any size, that rule turns the financial penalty into the main problem.

Developer, builder and site manager: a closed circle

Art. 319 CP is a special offence: only developers, builders or site managers can be principals. That list is not decorative; it is the filter that leaves out many of the people named in the complaint.

The owner who commissions and finances the works usually occupies the position of developer even without ever using the word or holding a company. The builder answers for carrying out the works and the site manager for directing them, regardless of who signed the project. Outside the circle are the labourer, the materials supplier and the later purchaser of the property, who neither direct nor promote anything. Anyone outside that circle can only answer, if at all, as an accessory under the general rules on participation, with the corresponding reduction.

Demolition under art. 319.3 CP and confiscation of the profits

This is the consequence that worries clients most and is explained worst. Art. 319.3 CP states that courts may order, with reasons and at the offender’s expense, the demolition of the works and the restoration of the altered physical reality to its original state. It is not automatic: it is discretionary, it must be reasoned, and it is decided after hearing the competent authority and weighing the circumstances, without prejudice to compensation owed to third parties acting in good faith. The paragraph also allows demolition to be temporarily conditioned on security being provided for that compensation.

Confiscation works the other way round: "in any event, confiscation shall be ordered of the profits deriving from the offence", whatever transformations they may have undergone. In other words, demolition can be argued about and confiscation cannot. When a plea agreement is being negotiated, that is the real order of priorities.

Art. 319.4 CP: when the developer is a company

Where a legal person is liable under art. 31 bis CP, art. 319.4 CP imposes a fine of one to three years or, where the profit obtained was higher, of two to four times that amount. In addition, applying the rules of art. 66 bis CP, courts may impose the penalties in letters b) to g) of art. 33.7 CP, ranging from suspension of activities to judicial supervision.

In practice that means two defences to prepare at once, the company’s and the individuals’, and their interests do not always coincide.

Limitation: five years, and the argument is about the starting date

Neither form exceeds five years of prison or disqualification, so the offence becomes time-barred after five years (art. 131.1 CP); as the penalty is composite, the longer limitation period applies (art. 131.2 CP). It is worth holding that alongside the opposite figure: planning malfeasance under art. 320 CP is time-barred after fifteen years, because it carries the disqualification of art. 404 CP.

The problem is not the period but when it starts to run. Art. 132.1 CP counts from the day the offence was committed and, where the unlawful situation continues, from the moment it ends. Applied to a building, the argument turns on when the works are treated as completed, and that date is established with aerial imagery, utility connections, land registry records and the site documentation, not with the date of the municipal report.

A second clock should not be confused with the first: the administrative action to restore planning legality has its own deadlines, set by regional legislation. The lapse of the administrative file does not close the criminal case, and an acquittal does not stop the council pursuing the restoration order.

Later legalisation, annulled licences and changes of planning

• Legalised works. If the works could be authorised and the permit is obtained, the element of the offence falls away and the matter stays in the administrative sphere.
• Licence granted and later annulled. Annulment shows that it was contrary to the rules, not that the developer knew it. What was reported, what documentation was supplied and whether the works could be authorised all have to be examined; the focus then shifts to the official’s side of the counter.
• Later change of planning. This is one of the most frequently argued points, because the offence refers to an administrative rule that may change after the events. It requires a case-by-case analysis of what the amendment actually does to that plot.
• False documents. Where the file rests on altered certificates or projects, a second front appears, which we cover in illegal works and document forgery.

What the defence looks at

• The classification of the land on the day of the events, with a planning certificate and the plan then in force: it decides whether 319.1, 319.2 or neither applies.
• Whether the works could be authorised, established by the defendant’s own technical report rather than by the assertion in the municipal file.
• The exact role of each person involved and their title: who promoted, who built and who directed, with contracts and professional endorsements in hand.
• Intent, including mistake as to the classification of the land, especially on plots with a confused registry history or earlier licences.
• The completion date of the works, which governs limitation and is usually better documented than it seems.
• The proportionality of demolition and the security under art. 319.3 CP, including affected third parties in good faith.
• The calculation of the profit, which drives both the proportional fine and the scope of confiscation.
• Coordination with the administrative file, which runs in parallel and where decisions are taken that later weigh at trial.

If you have been reported or summoned over works carried out without a licence, the useful moment to act is before the municipal technical report goes unchallenged in the file. You can contact us at +34 91 078 65 74 or look at our page on illegal building works and at urban planning crimes as a whole.