Black construction by the tenant – part I.

Specifics of proceedings for the removal of a black building arising from a tenancy relationship

All buildings, alterations or landscaping carried out without or in violation of the relevant decision of the building authority are considered to be black buildings. Regardless of the nature and size of the property, the construction may also be carried out by a person other than the owner, for example a tenant.

What effect does the fact that the tenant’s construction works are in fact black construction have on the mutual position of the parties? Is it relevant that the builder of a black building is different from its owner? We will answer these questions in several posts, in which we will deal with the peculiarities of a tenant-built black building.

Black building as an unlawful act of the tenant

From a public law point of view, a black building always constitutes an illegal condition that can be corrected in principle in the framework of administrative proceedings:

1. an additional building permit, or
2. by removing the building (returning it to its original form).

If the tenant at the same time the black construction was carried out without the landlord’s knowledge or even against his will , there was also a breach of the tenant’s obligations under the lease, which may lead to:

1. the tenant’s obligation to restore the property to its original condition at the tenant’s expense and/or
2. to termination of the lease by the lessor.

The landlord’s attitude is key

However, it is possible that the landlord agrees with the construction and wishes to preserve it. The consenting attitude of the landlord is essential not only in terms of the lease relationship, but also for the course of the administrative proceedings for the removal or additional permission of the black building.

Possible consequences of black construction by the tenant

A black building implemented by a tenant may, depending on the circumstances, cause the following public law consequences provided for by the Building Act as well as private law consequences resulting from the tenancy relationship:

• ordering the removal of the black building by the building authority;
• the imposition of a fine by the building authority in misdemeanour proceedings;
• the tenant’s obligation to restore the property to its original condition at the tenant’s expense;
• termination of the tenancy for breach of the tenant’s obligations;
• financial compensation for the appreciation of the leased property.

In this article, we will focus on the first of the above, i.e. on the specifics of the proceedings for the removal of a black building that has been implemented by the tenant during the lease relationship, and where the person of the owner of the building differs from the person of the builder.

Commencement and course of proceedings for the removal of a black building and for an additional building permit

• If the building authority discovers the existence of a black building, it is obliged to initiate proceedings for its removal.
• In such a case, the obliged persons may submit an application for an additional building permit, where the removal of the black building can only be discussed after a negative decision on the additional building permit.

Tenant as a party to the proceedings

• Subject to the consent of the landlord as the owner of the property, proceedings may be initiated directly against the tenant as the builder of the black building.
• Such a procedure will be preferred by the landlord, as a rule, in the case where he does not agree with the construction changes made and expects the building authority to order their removal.
• However, the landlord may be motivated to take this procedural option even if it agrees to maintain the building modifications, but at the same time it does not have the information and documents that are required to be applied during the consideration of the additional building permit.

Landlord’s consent to the construction as a condition of the additional building permit – beware of a change in the landlord’s personality

• Although the Building Act does not explicitly impose such an obligation, the case law of the administrative courts has established the necessity of submitting the landlord’s written consent to the construction as a condition for consideration of the tenant’s application for an additional building permit;
• However, a situation may also arise where the ownership of the leased property has been transferred between the time the landlord’s consent to the changes was granted and the decision of the building authority – in such a case, it is not sufficient that the new landlord does not make an active effort to return the property to its original state, or that it grants the tenant consent verbally.
• Without a written consent to the implementation of specifically defined changes, the building authority cannot consider the application for additional building permit.
• The removal of a black building may be ordered even if the landlord and the tenant are in agreement regarding the maintenance of the building modifications – in such a case, the building authority will refuse the tenant’s request for an additional building permit, but may do so only after the tenant has invited the landlord to complete the written consent in vain.

Lessor as a party to the proceedings

• The landlord may also decide not to give his consent to the tenant’s participation and remain a party to the proceedings for the removal or additional permit for the black building.
• Such a procedure may result from the tenant’s agreement with the landlord, or the landlord may choose it as a prevention of unexpected procedural action by the tenant (regardless of whether the tenant seeks to remove the black building or its additional permit).
• However, the landlord should keep in mind that although in the event of his disagreement with the construction changes the tenant is obliged under the Civil Code to return the property to its previous state at his own expense, it is the landlord who may be ordered to remove the black building and may be enforced against him by the building authority when participating in administrative proceedings.

In case you are facing similar problems or have not found the right answers, the M2A Partners team is here to help. Do not hesitate to contact us.

This article is for informational purposes only and does not constitute legal advice or guidance for any particular case.