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01 February 2014

End of Illegal Structures in Slovakia?

After almost 40 years of the current regulation, a new Construction Act, introducing a substantial change of the construction law, should enter into force in 2014.

The current construction act (the Current Act) was adopted in 1976. Despite multiple changes, it does not reflect the changes that the market has undergone and is no longer suited to the conditions of construction practice. It also does not provide for satisfactory solutions to many problems. One of the most prominent issues, as seen both by the authorities and the public, is the regulation of illegal structures.

Current Slovak legislation on illegal structures

Generally, a structure can be built only with a valid building permit (or timely notification for simple structures), otherwise it is illegal under the construction law. However, the Current Act is very ineffective in preventing and sanctioning the building of illegal structures. 

The reason for this is that under the Current Act the building authority must always examine the possibility of issuing a subsequent building permit. Such subsequent building permit legalises construction activities that were already carried out. Only if a subsequent building permit cannot be issued can demolition of the building be ordered.

The problem is that the building authority may reject issuing a subsequent building permit to the constructor only if the construction of such a building is against public interests or if the constructor refuses to cooperate with the building authority. It has proven difficult to show in practice that a certain building contravenes the public interest. As a result, a demolition of illegal buildings is almost never ordered.

Draft of a New Slovak Construction Act published

During the past few years, the Slovak Ministry of Transportation, Construction and Regional Development (the Ministry) has worked on a new construction act, repeatedly postponing the deadline of its finalisation. Finally, in July 2013, a draft of the new law was presented (the New Act). The New Act caused a heated discussion as it provides for very strict sanctioning of illegal structures, basically without any possibility for a subsequent building permit (except for minor violations, such as minor changes on construction without valid permit, or commencement of construction before an issued building permit enters into force).

Termination of the building activities on unfinished illegal structures

Under the New Act, if a structure is built without a building permit or conflicts with its terms, the building authority must immediately order the constructor to (i) stop all building activities, (ii) close down the construction site, and (iii) secure the structure and construction site to avoid trespassing of a third parties. An appeal against such decision of the building authority will not postpone its effectives.

The building authority will also notify providers of utilities (ie, water and electricity) who must immediately stop delivering utilities to the site.

If the constructor continues with building activities despite the decision, the building authority may (i) prohibit access to the structure; (ii) lock the material and building mechanisms on the construction site and guard them by a security service at the expenses of the constructor; and/or (iii) propose the withdrawal of the constructor’s business licence to the Trade Licensing Office.

Forced demolition of finished illegal buildings

Subject to the few exceptions mentioned above, the building authority will have to order the demolition of illegal structures by the constructor at his own costs. This will apply also to illegal buildings finished before the New Act enters into force with the exception of structures finished before 1 October 1976.

Interim provisions 

It is expected that the owners of illegal buildings will be granted a 12-month grace period during which they might file a request for a subsequent building permit. This is a highly criticised provision because of a fear that developers will commence illegal construction activities solely to “making it in time” for this interim provision.

Other sanctions

The New Act introduces significantly higher penalties for illegal construction. It is also suggested that continuing with the construction despite an enforceable decision of the building authority ordering to stop the construction activities be classified a crime. Punishing construction law violations also via the criminal law is a trend that can be observed in the past few years, and we expect that it will continue.

Expected entry into force

The Ministry currently envisages that the New Act will be adopted by the Slovak National Council mid-June 2014. Although the New Act may be changed in the course of its approval process in the Slovak National Council, it can be expected that one of its main objectives – fighting illegal construction – will remain. It will be important to follow the developments closely as the New Act will bring many changes to the construction law, not only in the area of regulation of illegal structures.

The new Slovak Construction Act will introduce more effective legal tools against illegal structures, as well as strict sanctions.

authors: Soňa Hekelová, Michal Mikuš