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:
- it is built-up before March 31st, 2001 (when the current Space Development Act entered into force);
- for which there are no construction permits;
- for which no removal procedure has been initiated;
- which was permissible under the development plans, construction standards and regulations at the time of construction or under the current construction requirements.
Tolerable constructions are an eligible subject of ownership rights and:
- can be fully or partially (for ideal parts only) acquired after expiration of prescription period;
- may be subject of additional construction works on the horizontal or vertical outline;
- major repairment, reconstruction and alteration activities may be carried out in such constructions if such activities do not alter their horizontal or vertical external outline. As well as that, building of new or strengthening of existing load-bearing constructions is not permissible (if there is no permanent spatial planning status);
- their way of use may be changed (if they have a permanent spatial development status under the current development plan).
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:
- it is constructed after March 31st, 2001
Contrary to the previous legal framework, the current SDA does not provide for validation procedure for illegal constructions, but only regulates their forced removal.
- there is no construction documentation to be provided by the owner or kept at the respective municipality
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.
- it has been built-up on the basis of construction documents if the construction permit has been revoked;
- it was built-up with substantial deviations from the approved investment project;
- it was built-up with construction materials which are non-compliant with the standards and regulations applicable;
- it was built in violation of the regulations for execution of construction and installation works, if this affects the structural safety and the safe use of the construction if it is impossible to adjust the construction in compliance with the requirements of the SDA.
Meaning of the certificate for constructive tolerability
Issuance of a certificate for constructive tolerability does not ensure that the construction will not be removed:
- The predominant SCC’s case law states that the certificate for constructive tolerability regulates the legal status of illegal constructions by establishing that they will not be removed by the state. The certificate does not aim to exclude such constructions from the civil turnover, but only to draw the attention of the acquirer that if the construction is subject to removal as illegal, the latter will bear the removal costs.
- According to administrative courts’ case law the sole purpose of a constructive tolerability certificate is to enable the notarial transfer of constructions. The purpose is to inform the acquirer that the property transferred is an illegal construction.
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:
- removal of the construction by the construction control authorities, as the constructive tolerability certificate does not prevent such control authorities or the courts from considering that the construction should be removed;
- prohibition on the use of the construction for the purpose for which it was acquired.
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
- Construction tolerability status may not impose obligation on the landowner to suffer any inconveniences from an illegal construction owned by another person. Thus, a landowner may defend himself/herself with a condemnation court claim for suspension of all actions preventing the landowner from fully exercising his/her rights over the real estate.
- There is also case law stating that an illegal construction should not be removed, even if it crosses into an adjacent property, if such encroachment is found out by means of more accurate modern methods of measurement and could not have been identified by the methods used at the time of construction.
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.