You've found a villa in Benahavís or a townhouse in Estepona, and somewhere in the paperwork the question comes up of whether it has a first occupation licence, and whether that enclosed terrace or pool house was ever declared. In Spain this can feel like a technicality to a foreign buyer, but it decides if you can put the electricity and water in your name on a permanent contract, whether the building can be registered as finished at the Land Registry, and often whether a bank will lend on it.
The first occupation licence (licencia de primera ocupación) is the town council's confirmation that a finished building matches its building licence and can be lived in. In Andalucía it has mostly been replaced by a declaración responsable de ocupación o utilización, a self-declaration filed with the council that lets you occupy the home from the day it's filed. Older homes and homes with undeclared work follow other routes, either a council certificate for buildings finished before 1975 or recognition as asimilado a fuera de ordenación (AFO, roughly "treated as outside the planning rules"), which accepts a building the council can no longer act against without making it legal.
In this guide, you'll learn how the system works in Andalucía today, what options older properties have, what changes when a house has undeclared extensions, and what to ask for before you sign anything.
What the licence actually does
The licence, or the self-declaration that replaces it, is handled by the town council where the property sits. Andalucía's planning law, Ley 7/2021 on the sustainability of the territory of Andalucía, usually called the LISTA, doesn't talk about "first" or "second" occupation at all. It refers to occupation or use and treats new and existing buildings separately, and its General Regulation, approved by Decreto 550/2022 (a regional decree), fills in the detail.
For a buyer the document matters at three points. Utility companies need it before they'll sign a permanent electricity, water, gas or telecoms contract, although an AFO resolution or a pre-1975 certificate has the same effect for this purpose (article 142.2). Notaries need it, together with a technician's certificate that the work was finished as authorised, to execute a deed declaring a finished new building (declaración de obra nueva terminada), and registrars have to ask for it before they register one. And if you're borrowing, banks value property under Orden ECO/805/2003, the ministerial order on valuations, and missing planning paperwork can make a lender more cautious or lead it to ask for extra documents.
UK buyers sometimes hear about a "habitation certificate" (cédula de habitabilidad). That's a regional document that only some regions still use, and according to Spain's consumer organisation, the OCU, Andalucía isn't one of them, so here the occupation licence or self-declaration does that job.
How it works in Andalucía now
For a new home built with a building licence, nobody applies for an occupation licence any more. The owner or developer files a self-declaration of occupation with the town council (article 138.1.d of the LISTA), along with the end-of-works certificate and the supporting documents. The council doesn't give permission in advance. It receives the declaration and checks afterwards, and if something is wrong it can declare the self-declaration ineffective.
The same route is open to an existing home that complies with the planning rules, or that is in situación legal de fuera de ordenación, which broadly means a building that was lawful when it went up but that today's rules wouldn't allow as it stands. It has to be on urban land not subject to urban transformation works, and it must not have had any building work done (article 138.1.e of the LISTA and article 293.1.e of the Regulation). That last condition is the one to watch, because where there's work without a licence, filing a self-declaration doesn't fix it, and the law treats that work as unlicensed for all purposes (article 138.7).
Each council sets its own document list. Forms already adapted to the LISTA, such as the one published in 2025 by the Ayuntamiento de Montilla (Montilla town council), typically ask for the following, on top of ID and proof that the fee has been paid.
| Document | New home (art. 138.1.d) | Existing home with no works (art. 138.1.e) |
|---|---|---|
| Technical certificate | End-of-works certificate from the site management team, stamped by the professional association (visado) | Descriptive and graphic certificate from a qualified technician |
| Installations | Certificate from the utility companies on the connections | Proof that the installations work |
| Other | Energy efficiency and telecoms certificates where mandatory, plus photographs of the façades | Photographs of the façades |
The cost has two parts, the municipal fee, which each council sets in its fiscal bylaw (ordenanza fiscal), and the fees of the technician who signs the certificates. Timing tends to worry people more than it should. The self-declaration lets you occupy the home from the day it's filed with the required documents (article 138.5), so the slow part is usually getting the technical certificates together.
Older homes without a licence
A lot of resale property on the Costa del Sol was built decades ago. If a home got a first occupation licence when it was built, that licence still stands and you only need a copy from the seller or the council. If it never had one, the route depends on its situation.
| Situation of the home | Route | Legal basis |
|---|---|---|
| Got a first occupation licence when built | The original licence remains valid; ask the seller or the council for a copy | Licence granted at the time |
| Lawful or lawfully outside the current rules, on urban land, with no later building work | Self-declaration of occupation of an existing building | Art. 138.1.e LISTA; art. 293.1.e of the Regulation |
| Completed before Ley 19/1975 came into force, without a licence | Administrative certificate from the council on its legal regime | Fifth transitional provision, LISTA |
| Irregular and completed, with the deadline to restore legality expired | Recognition as asimilado a fuera de ordenación (AFO) | Arts. 173 and 174 LISTA; art. 404 of the Regulation |
The pre-1975 certificate treats the home as though it had both a building licence and an occupation licence, for the use it had at that date. The LISTA's fifth transitional provision also extends it to irregular buildings on urban and developable land where the deadline to restore legality had already run out when Ley 8/1990, of 25 July, came into force. It doesn't cover later work done without a licence, and it doesn't apply on the coastal public domain (dominio público marítimo-terrestre) or its easements, where Spain's Coastal Law (Ley de Costas) takes over.
Buying a home without a first occupation licence in Spain
You can buy one, but you take on its limitations along with the keys. Without an occupation licence or self-declaration you can't get a permanent supply contract, the building can't be registered as finished, and financing gets harder. If there's irregular building work, such as an enclosed porch, an extra bedroom or a pool that never had a licence, the council can still act against it until the legal deadline has passed.
The six-year limit and its exceptions
Under article 153 of the LISTA, the council has six years from full completion of the work, or from when external signs of it appeared if that's later, to take measures to restore legality. Some cases have no time limit at all, including work on public domain land and its easements, rural land (suelo rústico) in the coastal zone of influence, green areas and open spaces, assets in the General Catalogue of Andalusian Historical Heritage, and urban-style plot subdivisions on rural land. On the Costa del Sol the coastal exception is the one that matters most for homes on rural land near the sea.
Legalisation or AFO
Legalising work means getting the licence, or filing the self-declaration, that was missing in the first place, and that's only possible if the work complies with the current planning rules. When it doesn't comply and the six years have passed, the route is AFO recognition, which works like this:
The council has up to six months to decide, and if it doesn't reply the application counts as refused (article 173.2).
Until then the home can't connect to basic services or have work done, apart from work the council orders for safety or health reasons (article 173.3).
Recognition doesn't amount to legalisation (article 174.1), although it allows connection to services to be authorised where only the connection works are needed (article 174.3).
It's recorded at the Land Registry by a marginal note (article 174.6).
It allows conservation and renovation work that doesn't increase the footprint or the built volume (article 174.7).
So an AFO house can be lived in and looked after, but you shouldn't plan on extending it, and the price you offer should take that into account.
What to check before you sign the arras
The contrato de arras is the deposit contract most buyers sign before completion, and it's the point by which the planning questions should already have answers. Before you sign, work through these with your lawyer:
Ask for a copy of the first occupation licence, the self-declaration that was filed, or the relevant certificate or AFO resolution.
Compare the nota simple (the Land Registry extract) and the cadastral certificate with what's actually built, including floor area, pool, enclosed porches and extensions.
Ask the council's planning department for information on the property's planning status.
Agree with your lawyer how the planning documents will be dealt with in the arras deposit contract.
Confirm the current position with a planning lawyer (abogado urbanista) before signing, and have an architect look at the technical side.
Before you commit
Questions about the first occupation licence in Spain are much easier to deal with before an offer than after one. In Andalucía most homes fall into one of a handful of situations, a new build with a self-declaration, an older home with its original licence, a lawful existing home with a newer self-declaration, a pre-1975 certificate or AFO recognition, and each one comes with a document you can ask to see. If the seller can't produce it, or what's built doesn't match the nota simple, that's the moment to bring in an architect or lawyer, while you still have room to negotiate or step back.
If you're looking at a property in Marbella, Nueva Andalucía, Estepona, Benahavís or Sotogrande and want a second pair of eyes on the paperwork, you can ask me for a second opinion before you buy, or get in touch with the property reference and tell me what's worrying you.