Author: María Gracia Moreno Vegas
WHAT IS THE INTERDICT OF NEW CONSTRUCTION
In spite of being part of the procedures classified as interdict or prohibitive – that the Law 1/2000, of 7 January, of Civil Procedure (LEC), especially in its art. 250, suppressed as an independent procedure that could have the effects of “res judicata” in verbal trial -, in the case of the interdict of building works it is not a procedure of possession as such, since it only protects the possession and has a clear preventive character, trying to avoid damages once the building works are finished.
Instead, it is a declaratory, special and summary process for the protection of property, possession or other real right disturbed by the effects of a structure, through the suspension of the structure.
Its objective is to offer a solution that protects against further damage on a provisional and not definitive basis, and is not based on the certainty that characterises definitive proceedings, but on the probability that characterises provisional measures, which requires that the works have not been completed.
For, if they were, the action for refusal of the easement or other relevant action, as the case may be, would proceed instead of the interim measure; thus there would no longer be a reason of urgency justifying such an action with prima facie debilitating effects.
If the works were completed, the suspensive application would be subject to deliberation and, if damage had been caused, the prohibitory action could not lead to a fruitful result, as it would only lead to an unreasonable stoppage of an already completed work and some other procedure would have to be followed to undo or compensate for the damage that might have been caused.
In short, the interdicto de obra nueva is the declaratory judgment intended to protect the rights in rem that could be infringed by any construction or structure.
WHO IS COMPETENT TO CARRY OUT THE PROHIBITION OF NEW CONSTRUCTION?
Actively, the person (owner, possessor, or holder of a right in rem) who is infringed or harmed by the new construction is entitled to request a building injunction. Likewise, according to the Supreme Court in its ruling of 12 June 1999, the administrator of the injured party is also entitled to do so.
In cases of indivision, the fact that only one of the owners brings the action does not preclude him from having standing, given that in cases of indivision there is a coexistence of possessions.
This case of co-possession must be understood as an exception to Article 445 of the Civil Code, which occurs because in such a case there is not a single fact of possession held by a multiplicity of subjects, as could occur in the case of a limited company or an association in relation to the assets that belong to them, but in fact, different possessions that continuously fall on the asset and all its parts.
WHAT IS THE CONTENT AND PROCEDURE OF THE PROHIBITION OF NEW CONSTRUCTION?
According to the current Civil Procedure Act 1/2000, there are two phases in the procedure for issuing this injunction:
– The mere stoppage of the work: this must be adopted by the judge in the admission of the interdict claim. In this phase, the owner or executor of the work is required to suspend it in its current state, a professional suspension that can be obtained by any person who has procedural capacity and includes in their claim the necessary requirements for it to take effect.
However, in view of this provisional and preventive suspension, if the alleged state of possession is to be achieved in true legal possession, a real trial must immediately follow, for which the second phase is intended.
– The contradictory phase: this is intended to examine whether the plaintiff’s claim is legitimately founded, taking into account the evidence provided, and must be carried out according to the rules of the oral trial. It will require evidence to show whether the state or fact of possession has been prejudiced, limited or impaired in the exercise of the works.
The legitimacy of such a claim (legitimation ad causam) will be subject to scrutiny by whoever is understood by law to be invested with a legal reason to do so, and who has an interest deserving of favourable protection, since the mere existence of a work will not be sufficient to establish the impairment that the interdict seeks to avoid.
In order for the action to be successful, i.e. to prove that the work invades, limits, restricts, modifies or impedes the exercise of possession, there must be a phenomenon contrary to the integrity of possession alleged by the plaintiff, and it is up to the plaintiff to prove beyond doubt the certainty of the allegations in accordance with article 217 of the Civil Procedure Act.
The proceedings are brought to an end with a judgement that does not have the effect of res judicata. That is to say, by virtue of the provisions of article 447 of the Law on Civil Procedure, it will not prevent the parties from accessing a subsequent declaratory judgment that determines the existence or not of the real right that legitimises the continuation of the works.
REQUIREMENTS AND PROCESSING OF A NEW BUILDING INJUNCTION
The essential requirements for this injunction to be successful under current legislation are as follows:
- The plaintiff must at least have possession of the property or ownership of the right affected by the work whose suspension is requested.
- That the action is directed against the builder, in a legal sense, not in a material sense.
- That the work commenced modifies the reality of the outside world.
- That the work is prejudicial to or at least disruptive of the possessory situation or the enjoyment of the right in which the plaintiff finds himself.
- The work is not completed when the interdict action is brought.
IS IT POSSIBLE TO BRING AN INTERDICT OF NEW CONSTRUCTION AGAINST THE ADMINISTRATION?
With regard to the processing of the interdiction of works before the Administration, a phenomenon occurs that produces particularly prohibitive effects, since in this case it only requires the mere filing of a lawsuit against the administration to take place:
-The paralysis of the work without the need to demonstrate the damage or harm that it may have caused.
-The prohibition of the possibility of challenging the administrative action before the contentious-administrative jurisdiction, the natural venue for the prosecution of administrative acts, which is still purely a material action of the administration.
-The prolongation of the stoppage of the works during the period of the appeal proceedings that may be brought against the judgement issued in the original declaratory judgment.
Likewise, it is essential to highlight that it is not possible to bring an injunction action against the Administration unless it acts without following the procedures legally foreseen for carrying out the works. It is not only the impairment or infringement of rights in rem of possession that is valid, but it is also necessary for the Administration to act outside its sphere of competence.
This has been established in the Law of Forced Expropriation of 16 December 1954 in Article 125, which granted the possibility of using the interdicts to retain and recover when the Administration did not comply with the legal regulations in its actions.
Both the Local Regime Law of 24 June 1955 and Article 38 of the Legal Regime Law of 26 July 1957, as well as Article 103 of the Administrative Procedure Law of 17 July 1958, and Article 8 of the State Patrimony Law of 15 April 1964, establish a relative uniformity applicable to all administrations in terms of the prohibition to bring injunctions against them, admitting them only when the administration acts outside the scope of its competence or without respecting the legally established procedure or the substantial requirements of the same.
In order to give even greater legal force to the above, the Constitutional Court in Ruling 22/1984 has stated that de facto actions, i.e. those that can be subject to injunctions, must be understood to be those carried out by civil servants without any legal basis. Judgment 160/1991 of the same Court adds to the above-mentioned actions those that are not even apparently covered by a legal framework.