Building without proper title

Czech Republic: How to proceed if the owner of a building forfeits the private-law title under which they were allowed to erect the building on a given land plot?

Along with the arrival of the new Civil Code, the old principle of superficies solo cedit has returned to Czech law. As a consequence, buildings ought to form an integral part of the land plots on which they are found. And yet, this is sometimes not the case, and the land plot and the building on it may in fact be separate things.

From a private-law perspective, it is indispensable that the owner of a given building have the right to use the land plot for the purpose of erecting a building on it. This right usually takes the form of an encumbrance in rem (i.e., an easement), a leasehold (právo stavby, in Czech), or a lease agreement. In the latter case, considering that a lease agreement creates a title that is limited in time, the building owner will have to remove the building once the agreement (and thus the title) has expired. Failure to do so entitles the owner of the land to demand from the owner of the building that the latter surrender the land plot which has been unjustifiably “retained” by putting the building on it (Sec. 1040 of the Civil Code).

Where both building and land plot are in the ownership of one and the same person, the right to put the building on the land arises directly from the ownership title itself, and the builder thus erects the building based on a title that is unlimited in time. If, in such a case, the owner of the building transfers the ownership title to the land plot underneath the building to someone else, or otherwise forfeits that ownership title, then they must procure another title based upon which they may use the land plot for the purpose of placing their building there. If the builder fails to ensure such title, then the owner of the land plot is entitled to demand that the building owner surrender the unjust enrichment associated with the enjoyment of the affected land plot without proper title. However, the owner of the land plot will not be able to demand the surrender of the land plot itself (i.e., the removal of the building), because the building was erected at the time based upon an unlimited title (Czech Supreme Court resolution 22 CDO 746/2007)

Source: Civil Code (Act No. 89/2012 Coll.)

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