Czech Supreme Court broadens the options for defending oneself against illicit buildings

Already in March of this year, the Supreme Court of the Czech Republic issued a decision which resulted in a significant strengthening of the rights of affected persons to defend themselves against illicit building activities.

Today, with minor exceptions, all construction work is subject to some form of public-law approval, primarily in the context of permitting procedures under the Building Act (zoning and building permission proceedings).

The aim of these permitting proceedings is to assess the construction project both in terms of the protection of public interests (efficient use of the area, protection of the environment, etc.) and in terms of the protection of private interests of persons who could be affected by the construction (e.g. owners of neighboring properties).

If one has objections to the construction plan, one must first and foremost raise these objections in a timely manner in the relevant permitting proceedings. Failure to raise objections in the permitting proceedings within the given statutory time period will hamper, or altogether deprive us from, the options available to us in successfully defending ourselves against the construction project!

But how can one effectively defend oneself against construction projects if the builder carries out the construction without a permit or in breach of the permit? In such cases, one has no opportunity to file objections so that they be properly heard.

The first line of defense should be provided directly by the government through the building department. If the building department itself discovers or is notified that a construction is being carried out in violation of a permit or without any permit at all, it should call on the developer ex officio to immediately stop further work and, if necessary, directly prohibit the continuation of work by way of an official decision. The same applies to an unauthorized building that has already been built, whereas the building department should initiate proceedings for its removal. While the owner of an unauthorized building may apply for a supplementary building permit, in the proceedings on such application, one may finally bring objections, and such objections must be properly dealt with in the proceedings.

But how should one proceed if the building department refuses to enforce the above powers, even though the complainant is convinced that the building is unlawful?

Until recently, there was almost no possibility of defending oneself against such inaction by the building department under public law. According to case law, the person affected by an unlawful building had no public subjective right to initiate administrative proceedings for the removal of the building, as the proceedings could only be initiated ex officio and were therefore entirely at the disposal of the competent building department. The possibilities for private defense under civil law in the ordinary courts (in particular Sections 1004 and 2903(2) of the Civil Code) are limited in this area and not always entirely effective.

However, in a recent decision of 26 March 2021 (No. 6 As 108/2019-39), the Supreme Administrative Court significantly strengthened the legal position of persons directly affected by unlawful buildings by abandoning its earlier case law and admitting the right of affected persons to demand the removal of an unlawful building. The inaction of the building department can thus newly be contested through an action for protection against unlawful interference by an administrative authority.

Should the administrative court find, on the basis of the action filed, that the statutory conditions for initiating proceedings for the removal of the building are met, it shall authoritatively order the building department to initiate such proceedings. The initiation of removal proceedings does not in itself guarantee that the removal of the unauthorized building will be achieved, but it does give one the opportunity to actually raise objections to the building, which must be dealt with by the building department. If one is not satisfied with the way in which one’s objections were addressed in the proceedings, one may appeal the additional building permit with the superior administrative authority, or subsequently by filing a lawsuit against the additional building permit in the administrative courts.

The decision of the Supreme Administrative Court in question thus quite rightly extends the possibilities of defense of affected persons concerned against unlawful buildings in an area in which such defense options were previously completely absent, without any apparent reason.

Supreme Administrative Court judgment 6 As 108/2019-39 of 26 March 2021
Sec. 1004 and 2903 (2) of the Czech Civil Code (Act No. 89/2012 Coll.)

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