In depth
Law No. 290901 and its regulations, as approved by Supreme Decree No. 029-2019-VIVIENDA, regulates urban allotments and buildings. It establishes procedures and requirements for the application of licenses which are mandatory for all owners, usufructs, surface owners, concessionaires, holders of an easement, and all those who have the right to use, occupy and/or build real property. The law applies to natural and legal persons, as well as public and private entities.
Construction or building works without the appropriate license constitutes an administrative infraction. In cases of administrative infractions and sanctions, Law No. 274442, General Administrative Procedure Law applies. However, it is unclear how the statute of limitations apply to constructions without licenses.
Law No. 27444 states that the authority's power to determine the existence of administrative violations is subject to the statute of limitations established by special laws or, failing that, after four years. In the case of infractions which occur in a single moment or with a single act, it is clear that the statute of limitations is computed from the time the infraction was committed. However, the period for the statute of limitations is not clear in the case of continuous infringements or infringements with permanent effect.
In this alert, we will discuss the statute of limitations with regard to constructions without a license. Undoubtedly, this is an infringement. But when is the infringement considered to have ceased, if at all? In a recent cassation ruling (Cassation No. 6537-2019 Cusco), the Supreme Court has stated that "the failure to present a construction license would constitute a continuing infringement."
In this case, the defendant carried out the construction without a license between 2000 and 2004. The District Municipality of Wanchaq, where the property was located, imposed a sanction in 2011. The courts of first and second instance resolved that the statute of limitations period had already elapsed. However, in the cassation decision, the Supreme Court specified that the computation of the statute of limitations for determining the existence of infringements will start from the day on which the infringement ceased. And that is, in this case, the year 2011, which is the date on which the aforementioned inspection was carried out and the sanction resolution was issued.
This ruling is consistent with Cassation No. 23624-2017, where it was specified that when a party remains in an infringing situation, in such a way that the unlawful act continues to be carried out, the infringement continues to be committed until the unlawful situation is resolved.
We trust that this information will be useful to you. Should you require legal advice on this subject for your company, please do not hesitate to contact us.
1 Sole Ordered Text approved by Supreme Decree N.° 006-2017-VIVIENDA
2 Sole Ordered Text approved by Supreme Decree N.° 004-2019-JUS
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