Information
“Sheet” for Property Owners
Affected
by the Vías Pecuarias Law
What is the Vías Pecuarias
Law?
The Vías Pecuarias Law is a law that stipulates that 600 years ago there was a group of nomadic livestock farmers called the Mesta that had grazing rights and rights of passage over a very large and extensive network of drove roads running throughout the entire length and breadth of Spain.
The VP Law stipulates that there are three main types of Vías Pecuarias:
The Cordel, with a maximum width of 20 m
The Vereda with a maximum width of 37.5 m
The Canada, with a maximum width of 75 m
The quintessential essence of this Law is that it declares that all ancient drove roads are public domain and that as such they cannot become private, or be annexed in any way by neighbouring landowners no matter how long they have been in disuse.
What does this mean, and what are the main anti-constitutional aspects about the VP Law?
Quite simply it means that anyone can approach a lawyer to help them buy a property; that the lawyer might then carry out a search in the Land Registry Office to confirm that there are no other claims on the land or any buildings and that the land actually belongs to the seller. The buyer might then part with vast sums of money to acquire the property and still find that the property does not belong to them; the land is not expropriated (where the owner receives compensation) but appropriated by the Department of the Environment.(DOE)
1. Suddenly your deeds and their registration in the Land Registry Office become worthless. A situation arises known in Spanish Law as indefensión an inability to defend one’s rights because the only redress the buyer has is against the seller and the seller in their turn has no redress, even if they sold the property in good faith.
What is wrong with the way the Department of the Environment are putting the VP Law into effect?
1. In an effort to avoid direct confrontation with the landowners concerned who are quite rightly affronted by the sudden erosion of the their constitutional rights, the Department of the Environment is trying to handle these land appropriations (deslindes) as clinically as possible. As a result of this clinical approach one of the things that the DOE is doing -clearly irregular- is to define the boundaries on the different drove roads as having a set width. To do this they have chosen the maximum width applicable by Law. This means that if you have a drove road going through your land that is classified as a Cañada, they will almost certainly stipulate that it is 75 m wide, and so on, regardless of the lie of the land, any natural obstacles in the way or any buildings no matter how ancient.
2. The DOE are both judge and executioner and very rarely take heed of any appeals on the part of the private landowner unless backed up by the local town council, so if you don’t get on with the town council, you’re in deep water from the start, and you will almost certainly be forced to take your appeal to the High Provincial Administrative Appeals Court -“Contencioso Administrativo”. The trouble with this procedure is that once the DOE have approved the appropriation procedure, it is enforceable, which means once they have completed the procedure known as “Recuperación” they can come on to your land remove any fences and do anything else they want to do that is within the Law. All of which might not be so bad expect for the fact that the High Provincial Administrative Appeals Court has such an enormous backlog of work that it takes up to three years for them to just admit your appeal to court, never mind the injunction you might be seeking to get the whole thing suspended until such time as the appeal is heard!
What procedures does the DOE have to go through to reclaim a drove road and appropriate it from a landowner?
In chronological order the stages of the appropriation procedure are as follows:
1. Classification (“Clasificación”)
The procedure begins with the stage known as “Clasificación”. Many drove roads were already “Classified” back in 1967 to 1969 or, in some cases, as long ago as 1945, notwithstanding which the DOE at the time had no obligation to register such rights in the Land Registry Office.
According to article 12 of the Vías Pecuarias Regulations “Classification is a summary administrative act by virtue of which the presence, name, width, route and other general physical characteristics of each drove road are determined”.
In practice, however, the DOE is
systematically avoiding its obligation to determine the width of the drove road
by applying the maximum width permitted by Law save in a few very specific
instances. In some cases it has
also been known to totally ignore its obligation to even determine the presence
of the drove road by referring exclusively to the 1960s Classifications.
The problem with this is that at the time the DOE made no attempt
whatsoever to accredit the presence of drove roads by referring to ancient maps
or any other documented evidence in situations where it is often obvious that
they merely extended a drove road out of convenience.
Article 13 then goes on to say that “1. Following the resolution to initiate the Classification a study should be produced that stipulates: any references on the drove road that exist in the archive provided for under article 6 of these regulations; any references as may exist in the municipality through which such drove roads run, and any details as may exist in any other public or private archives with regard to the existence of the same.” Again, this is something that the DOE consistently fails to do unless it benefits their case.
Most important is that the Law and the Andalusian Regulations on the Law stipulate that the proceedings will be published in the Official Provincial Bulletin and that all neighbouring and thus potentially affected landowners must be duly notified of the proceedings. On notifying the landowner a date is set for the site survey. Speaking from experience what happens after this is that the forest wardens and other DOE representatives (often subcontractors so that the DOE does not have to take the flak) come along and put wooden stakes in where they maintain the drove road is. Such personnel are entitled to enter your land against your wishes. If your land is fenced, you may deny them access to your property, but sooner or later they will be back with a court order to continue their “work”. During and/or after the site Classification the landowner is entitled to make a statement which will be taken down in writing for the record, concerning the inaccuracy of the grounds used to claim that the drove road is where the DOE says it is and so on, none of which will normally do you any good except to raise your blood pressure!
After the site survey, the findings are published and you are given one month within which to file an appeal before the DOE (judge and executioner).
At this stage, section 3 of Article 15 informs us that “once a report has been issued on the appeals submitted in respect of the latter proceedings, the Head of the provincial DOE will produce the Classification proposal, which shall determine (their words not mine!) the direction, width and approximate length of the drove road, including a detailed description of the route, its boundaries, approximate surface area and any other characteristics of any public livestock resting places (“descansaderos”), overnight livestock resting places (“majadas”), livestock drinking places (“abrevaderos”), in order to identify them and subsequently establish their boundaries.”
A period of 18 months may then
pass without hearing anything from the DOE until the General Secretary of the
DOE passes judgement, or even longer as the DOE are entitled to apply for an
extension on this period as often as they like. The General Secretary’s approval then follows, and affected
parties are again entitled to appeal to the DOE and more importantly, once the
latter has been rejected, to the High Provincial Court of Administrative Appeal.
In theory the High Provincial Court of Administrative Appeal (“Contencioso
Administrativo”) is an independent body and should judge each case on its
merits, however, as mentioned earlier, its backlog is vast and you will be
fortunate if you can get a hearing within a period of three to five years.
2. Establishing the Boundaries (“Deslinde”)
If your drove road has already been Classified the next step in the procedure is to physically establish the boundaries of the drove road on site and in the Land Registry Office. This is called the “Deslinde”.
Article 17 of the Regulations tell us that “According to the provisions of article 8.1 of the Drove Road Act, the “Deslinde” is the administrative act under which the limits of the drove road are established... ...in accordance with the Classification approved thereon.”
The rest of this stage of the procedure is very similar to the Classification insofar as concerns the notification of all affected or interested parties, the periods within which to submit an appeal to the DOE, publication requirements and so on, culminating in the approval of the Deslinde by the General Secretary, at which point the landowner may appeal to the High Provincial Court of Administrative Appeal (see comments on the latter under “Classification”).
There are two or three noticeable differences however. Rather disconcertingly one of them is that, that once the General Secretary has approved this stage, the land is no longer yours and the DOE is authorised to record its ownership of land that had previously been recorded as yours in the Land Registry Office.
This does not mean, however, that you cannot get it back. Another curious Spanish concept and one typical of what is known as “Napoleonic Law” is that a judgement is not “firm” until such time as the matter has been referred to the highest court of appeal that you are entitled to refer it to.
A very important point that all persons affected should be aware of is that there is a limited period within which an appeal or any court action can be filed for anything, i.e., the prescription period. In our case this period is five years as of the date on which the Classification and/or the Deslinde (either may be referred to the High Provincial Court of Administrative Appeal) is approved by the Secretary General.
What it does mean is that from this point on the DOE may do with your land whatever DOEs do, unless of course you have it fenced and refuse them access, and in which case they will begin another stage of the whole procedure, known as “Recovery”.
3. Boundary Marking (“Amojonamiento”)
Normally, after establishing the boundaries the DOE begins stage three of the proceedings, which involves planting permanent steel posts painted green with the reflective letters “V.P” on them instead of wooden stakes. All the Law says about this is that they are obliged to notify you beforehand. Do not whatever you do remove any of these stakes as this constitutes a very serious offence under the Law and you may be fined anything between 30,000 euros and 300,000 euros for doing so.
4. Recovery (“Recuperación”)
Article 27 tells us that “Recovery is the administrative act by which the Department of the Environment may at any time recover possession of any drove road unduly occupied by a third party.”
On completion of this stage the landowner is given a period of thirty days within which to discontinue occupying the land before the DOE physically comes to take possession of the land by removing any fences, gates or any other obstacles preventing public access to the same.
What can we do?
If you don’t feel up to fighting the Spanish DOE authorities in what is without doubt a singularly Kafkaesque scenario and in which, in the short term at least, one is bound to fail, you may wish to weigh up the relative (very relative!) benefits of reaching an agreement with the DOE to change the route of the drove road in such a way that is more advantageous to them whilst beneficial to you, for example, should you wish to move the drove road further away from you house to another location or route on your land. The DOE is authorised to enter into such agreements and such “Permutas” as they are called are fairly common, although it does help to have the support of your local Mayor to obtain such an exchange or a considerable amount of spare time to very courteously badger the DOE at their head office in the provincial capital.
Alternatively, if the worst comes to the worst and as the DOE never tire of reminding me, you may actually rent the land back off the DOE, with its consent, for the sum of 30 cents per square metre per annum. Whilst this figure may sound paltry if you’re thinking of renting half your house back off them, imagine what it sounds like if you’ve just been relieved of 2 hectares (20,000 x 0.30 € = 6,000 € p.a.).
For those who have Time, Money, Youth, Principles, Bloody Mindedness or -in the Words of the Grim Reaper- “Balls”
The other option, of course, is to fight. Easier said than done. Fighting in this particular case will require you to engage the services of a decent lawyer; one that does the job for a reasonable quantity of money. I have been very fortunate in finding such lawyer and if anyone wants his details, I can supply them; Lord knows, he deserves it. As to whether or not he will have the time to take the case; that is up to him.
1. More seriously, everyone involved should get their own lawyer; anything else is too stressful to contemplate. Your lawyer will deal with all the legalese and the DOE as best he can, and the matter will invariably be referred to the High Provincial Court of Administrative Appeal (got eight to nine years?).
It should be mentioned that there is some element of dispute amongst lawyers as to whether such actions should be referred to the civil courts or the administrative courts and since I am not a lawyer, I would leave this up to them to decide. The argument, however, goes something like this. The ownership of property is a civil matter as is the Land Registry’s function and it should therefore be referred to the civil courts, or, alternatively, as the action is taken by the DOE against the landowner, this is an administrative act and should therefore be referred to the administrative court. Suffice to say that each case differs and the person best qualified to decide on this should be your lawyer, but don’t be lemming, be a “lert”; this whole dispute is very new even to the legal fraternity. Try to keep abreast of what your lawyer is doing for you and why. You should also be aware that, so far, in my case (I am passed stage four!) my court action and legal representation has already cost me 4,000 euros in cash, which doesn’t take into account the time, petrol, sleep I have lost and other funds I have already spent on this particular cause.
2. Once you have a lawyer he or she will need to have as much information as possible on the case. To obtain this you should know that any landowner or even association that can prove that they are an affected party is entitled to copies of all the DOE’s records, correspondence and notifications concerning the action. All you have to do to obtain this is to request it in writing from the provincial DOE by certified post.
3. Go to the provincial archives and dig up everything you can in the way of ancient maps and entries in previous cadastral documentation –see comments concerning civil servants above. Obtain copies of the above and send them to your lawyer.
4. Write articles for both the Spanish and English press.
5. Join the AAVP –Asociación de Afectados por las Vías Pecuarias –just being formed at the time of writing. The AAVP intends to collect enough funds from its members to be able to pay the services of an expert firm of lawyers to take this issue to the Supreme Court, the Constitutional Court, the EU Parliament, the European Court of Human Rights and more. It also intends to plan events to capture the attention of the press, TV and radio.
6. File your own petition before the EU Parliament, first via internet...
(http://www.europarl.europa.eu/parliament/public/staticDisplay.do?id=49&language=EN)
then by post. To view a petition already presented and accepted, click...
7. Don’t forget your deeds. Make sure your deeds are in order and file an application at the Land Registry Office to trace and provide you with copies (notas simples) of all the previous entries on the property, its owners and the description of the property to confirm that at no time were there any rights of public domain or drove roads registered on the property and to obtain the oldest references on the property available at the Land Registry.
8. Stay fit and hope you will still be alive when all this has been settled.
Lastly, remember that there is no guarantee that we will win, but that the EU is funding the Spanish DOE to do all these nasty things to us and that they may appreciate that public bridleways do not have to 75 m wide.