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Illegal and “Tolerable” Constructions According to the Latest Court Practice of the Supreme Court of Cassation

The Supreme Court of Cassation had the occasion to clarify some controversial issues provided in the Spatial Development Act (SDA). The matters covered by the resolution include: clarification of the meaning of constructive tolerability of illegal constructions, applicability of the certificate for constructive tolerability in disputes over ownership of illegal constructions, as well as other legal consequences of illegal construction and which constructions are considered illegal.

The more significant highlights in the resolutions of the SCC are:

Definition of “tolerable construction”

A construction is considered tolerable and is not subject to forced removal if:

Tolerable constructions are an eligible subject of ownership rights and:

However, presently the requirement that the construction should be legal and that a certificate for constructive tolerability should be issued is mainly applicable for notary transfer deals (i.e. real estate sales, donations, etc.).

There is also an interpretation that non-tolerable illegal constructions can be transferred, despite not having building permits and a certificate for constructive tolerability. On the other hand, when constructions are acquired as private state or private municipal property, as well as in bankruptcy proceedings, it is not necessary to establish the legality of the construction.

A construction is illegal, i.e., “intolerable” if:

Contrary to the previous legal framework, the current SDA does not provide for validation procedure for illegal constructions, but only regulates their forced removal.

However, it is possible, if the owner has a part of the construction documentation, to recover the construction documents before the court. Validity of constructions can only be proven be means of the relevant construction permits and documentation.

Meaning of the certificate for constructive tolerability

Issuance of a certificate for constructive tolerability does not ensure that the construction will not be removed:

Red flags for acquisition of an illegal constructions

Acquisition of illegal constructions itself is not null and void, but there is a risk for the acquirer of:

At the same time, the right of the state to demolish illegal constructions is time-barred – within 5 years as of the entry into force of the order for the removal of the construction until the receipt of the invitation for its voluntary removal by the owner.

Defense against tolerable constructions

The SCC’s resolution thus provides some partial terminological clarifications and illustrates in a synthesised way the main case law highlights on the matter. However, the SCC does not unequivocally establish whether and to what extent is it permissible to perform property transfers before a notary without a construction tolerability certificate.

The news above is for information purposes only. It is not a (binding) legal advice. For a thorough understanding of the subjects covered and prior acting on any issue discussed we kindly recommend Readers consult Ilieva, Voutcheva & Co. Law Firm attorneys at law.