Can a home outside planning rules or in AFO be a tourist home? The difference that changes everything

Short answer: it depends on which of the two it is. «Fuera de ordenación» (outside planning rules) is a building built legally that a later town plan left out of line (taller, bulkier or on a different alignment from what is allowed today): no rule excludes it from being a tourist home. «Asimilado a fuera de ordenación» (AFO) (treated as outside planning rules) is a building built without a licence or in breach of it that can no longer be demolished because the deadline has passed: Decree 28/2016 expressly says it cannot be a tourist home «unless there is prior express authorisation from the competent municipal body for the change of activity» (art. 1.3.d). In other words: without a document from the town hall authorising it beforehand, no.

What is each one?

Fuera de ordenación (art. 84 of Law 7/2021, LISTA): the building can still be used for its purpose, conservation works and those required for habitability are allowed, and, exceptionally, «changes of use that are compatible with the planning rules». The usual case on the Costa del Sol: buildings from the 1960s and 1970s with more floors than the current plan allows.

AFO (art. 173 LISTA): «irregular buildings that are finished […] in respect of which it is not possible to adopt measures to protect planning legality […] because the time limit has passed». Typical cases: a house on rural land built without a licence decades ago, a penthouse or an extension that was never legalised.

Why does the law exclude AFO homes?

Because recognising AFO status only serves to let the building be used as it is: connecting electricity and water (the companies require the resolution, art. 174.3), carrying out conservation works and registering it in the Property Register. But the law itself says that meeting the safety and health conditions «determines the physical suitability of the building for use, but does not presuppose compliance with the requirements and conditions that may be required to authorise activities» (art. 174.4). A tourist home is an activity: it needs something more.

That something more is the municipal authorisation of the change of activity. The law allows it when the new use is «compatible with territorial and urban planning» (art. 174.7 of the LISTA and art. 410.4 of its regulation), with a licence or a responsible declaration.

How do I know if my home is in AFO?

• Land registry extract: the AFO resolution is recorded in the Property Register by marginal note (art. 174.6). If the new-build deed was registered on the basis of the building's age, the Register notifies the town hall and the town hall records the planning status (art. 28.4 of the Land Act).
• Utility bills and contracts: if the electricity or water was connected with an AFO resolution, you have one.
• Town hall: each one has its own procedure. In Málaga, «Certificado de Situación de Asimilado a Fuera de Ordenación (SAFO)» (certificate of AFO status); in Benalmádena, «Certificado Asimilación Fuera de Ordenación» (AFO certificate); in Torremolinos, «Prescripción de Acciones (AFO)» (lapse of enforcement action), all on their online portals.

If you bought a house in the countryside or a home with an «old-style» extension, ask before spending on furniture or photos.

I have an AFO home: what do I do to rent it to tourists?

1. Ask the Planning department for authorisation of the change of activity to a tourist home (licence or responsible declaration, depending on the municipality), explaining that you have the AFO resolution. They will only grant it if the use is compatible with the plan on that plot.
2. With the authorisation in hand, register it with the Junta like any other home: owners' association (if there is one), requirements, responsible declaration (How to apply for the licence).
3. Without authorisation, do not register it: you would be declaring something false and the Junta would cancel the registration (art. 9.2 of Decree 28/2016), on top of the fines for operating without a valid registration.

Be realistic: on rural land, compatibility with tourist use is difficult, and many town halls do not grant it.

What if the home is in the countryside?

There is one more nuance. Decree 28/2016 leaves out of its scope homes «located in rural areas» (art. 1.2.c), which have their own regulation as rural tourist homes. If your house is in the countryside, the question is not only whether it is AFO, but also which of the two sets of rules applies to it. It is worth getting advice before you start.

What if my building is outside planning rules?

You can go ahead under the general rules: the owners' association's agreement, the municipality allowing tourist homes in that area (What if my municipality has a moratorium?) and the flat's requirements. What you will not be able to do is carry out extension works or structural renovations that the current plan does not allow. If you are going to do a major renovation before renting, check first with the Planning department which works your building allows.

Summary