13 February 2023
Key Provisions of the Case Law Overview Regarding Unauthorised Construction

The last year was memorable in terms of construction law as on 16 November 2022, the Presidium of the Supreme Court approved the Case Law Overview Regarding Unauthorised Construction (the Overview).

While the Supreme Court continued to give attention to pre existing views, other provisions in the Overview are new and significant for owners of unauthorised construction projects. We will discuss them below.

1. The emergence of a new provision in unauthorised construction cases similar in terms of concept and seriousness to administrative offences.

The Supreme Court emphasised that a breach of town planning and construction standards could be declared insignificant, thus allowing an unauthorised construction project to continue .

Despite that insignificance is a matter of opinion and must be ascertained by a court given the specific facts of a case, a reference to this argument could improve one’s chances if there is a dispute arising from unauthorised construction.

2. If a court holds that a breach could be remedied, the judgement will state both possible methods of remediation – demolition of an unauthorised construction project or its adjustment to comply with existing requirements.

Such an alternative judgement was contemplated earlier. However, it was not obvious whether a court should deliver such a judgement on its own initiative or if it may go beyond the claims formulated by a claimant.

Provisions of the Overview suggest that a court may deliver such a judgement at its own discretion, irrespective of what particular claims have been raised by the claimant.

Furthermore, a defendant is authorised to choose the method of enforcement of such a judgement that it deems more convenient and advisable.

3. The lack of a construction permit is not legally sufficient on its own in denying recognition of ownership to unauthorised construction or to dismiss a lawsuit seeking its demolition.

First, the need for demolition must be justified not only by the lack of permits and authorisations, but also by other facts precluding the use of such a construction (for example, failure to comply with safety requirements and violation of third party rights).

Second, as for recognition of ownership to an unauthorised construction, the Supreme Court sidesteps the subjective element – whether a person should have taken steps to obtain a construction permit – merely stating that its lack in itself cannot be used as a basis for adverse effects to occur.

We note that the prevailing view for a long time has been that the person who was able to obtain such a permit, but failed to take any steps to do so may not claim ownership to an unauthorised construction even if the lack of a construction permit is the only defect of the property.

However, in 2020 the Supreme Court questioned such an approach and stated that the law did not contain such a condition for recognition of ownership to an unauthorised construction as availability of a construction permit or the taking of steps to obtain such a permit.

It appears that the Supreme Court once again paid attention to its own views from 2020 because such views were not duly noted or supported by the courts.

4. A structure erected in accordance with the permitted use of a land plot, but used contrary to its intended purpose, may not be declared unauthorised construction on this reason alone.

The Overview sets forth a rule that the method of a structure’s use may not pre-determine the issue of whether or not it is unauthorised.

Specifically, violation of the intended use of a land plot could entail adverse sanctions such as contractual or administrative liability, but not the effect relating to unauthorised construction.

Therefore, the Supreme Court confirms once again that demolition as a sanction for unauthorised construction is a sanction of last resort.

While considering implications of unauthorised construction, one should evaluate the possibility of remedying violations and adjusting a structure to comply with existing requirements.

However, one should bear in mind that unauthorised construction violating third party rights or creating a danger for one’s life and health, as a rule, cannot be kept.

In the other cases, we recommend taking into account the Supreme Court’s views and setting forth additional opportunities to keep properties built with violations.


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