The new Building Act (GZ-1) set to take effect

The key change is that investors will be able to start construction at their own risk once they obtain a definitive building permit (i.e. administratively final) i.e. before it becomes judicially final, which was already possible under the Construction Act (“ZGO-1”), but has been amended by the GZ. 

Another key change in terms of speeding up procedures is that confirmation of payment of the municipal contribution is no longer a compulsory schedule to a building permit application, but will only have to be submitted alongside the construction commencement notice. However, until the eGraditev (i.e. eConstruction) system is in place (more on this below), payment of the municipal contribution is still a condition for obtaining a building permit. 

Compared to the GZ, the GZ-1 has expanded the concept of temporary facilities from temporary facilities intended for events or seasonal offers (temporary seasonal facility) to: (i) temporary emergency facilities (erected for the effective management of natural and other disasters or in case of force majeure); (ii) temporary storage facilities (i.e. facilities intended for the storage of non-hazardous substances and sanitary facilities); and (iii) temporary construction site facilities. Construction of temporary facilities may commence without obtaining a building permit; however, unlike in the GZ, a temporary storage facility is also subject to a construction commencement notice. 

The new law introduces the concept of minor reconstruction. This is work that is not building maintenance work or a full-scale building reconstruction, rather work to upgrade or replace several individual structural elements, which does not compromise the stability of the structure (e.g. roof replacement), to replace elements of the public water supply, public sewerage, major structural penetrations (e.g. for windows and doors), to install lifts inside a building and a minor increase in volume which does not increase the gross floor area of the building, and the addition of an external staircase or a lift connecting no more than three floors. Minor alterations may be carried out only on the basis of a written opinion from an authorised building expert. The addition of an external staircase or lift may be carried out on the basis of a written opinion of an approved architect. After completion of the works, their compliance with regulations will be confirmed by way of a compliance certificate issued by a building expert. In addition, minor reconstructions involving an increase in volume or the addition of an external staircase or lift will also require a zoning by-law compliance certificate from the municipality. 

The GZ-1 modifies in part the regime of issuing opinions so that the administrative authority is bound by the opinion of the competent opinion-giver, provided it clearly expresses the opinion-giver’s views and is professionally and legally substantiated and reasoned. 

Regarding the occupancy permit, the law establishes a fiction that all existing single-dwelling buildings have such a permit, provided they: (i) were built under a building permit issued before 1 June 2018 and only with minor deviations allowed; (ii) have not been subject to an inspection measure; and (iii) are registered in the real estate cadastre. The group of eligible applicants for an occupancy permit has also been extended to include the contractor, supervisor or any other person who is the owner or holder of rights in rem in the immovable property if the investor fails to submit an application within the prescribed time limit. 

GZ-1 also explicitly provides for the possibility of legalising individual parts of a building. 

The GZ-1 also allows for deferring enforcement with respect to the demolition of illegal structures if there may be a disproportionate interference in someone’s home. If an inspectable person or an individual resides in a building that should be removed or prohibited from being used, and the building constitutes a home for him or her, he or she may, in the course of enforcement proceedings, apply for a stay of enforcement on the grounds of the disproportionality of the interference of the inspection measure with their home. The applicant must demonstrate certain circumstances in the proceedings, including: (i) that he has resided in the property for more than one year; (ii) that he has no suitable alternative accommodation; (iii) that the applicant owns the property, unless he is a member of a marginalised or vulnerable social group and in the case of an established building right; and (iv) that the respective area is not a protected area. If all the conditions are met, enforcement will be suspended for five years. This provision was included in the GZ-1 in response to the Constitutional Court’s decision No. U-I-64/14 of 27 November 2017, in which the Constitutional Court held that the demolition of a building that constitutes a home for a natural person is only permissible if it is based on a prior court decision. The purpose of the additional deadline is to allow the applicant to sort out his/her housing situation, and it is clear from the wording of the law that this is primarily intended to protect applicants belonging to marginalised and vulnerable social groups. 

Regarding specific prohibitions, GZ-1 expressly provides that legal transactions (except for credit agreements), permits and consents which are in contravention of a decision imposing an inspection measure in respect of an illegal structure or use of a building in breach of regulations are void, provided an annotation of this prohibition has been entered in the Land Register. In this respect, GZ-1 provides that managers, notaries and other persons governed by public and private law are required, when issuing permits, consents, registering and concluding transactions, to pay attention of their own accord only to the prohibitions imposed by the inspector as part of the inspection measure and entered in the Land Register. 

Finally, a spatial planning information system, called eGraditev (i.e. eConstruction), was introduced for electronic transactions under the new law, except for measures regarding the interveners and the inspection procedure. These two exceptions cover cases of possible incapacity for electronic commerce of interveners or parties to inspection proceedings, who should nevertheless be able to successfully protect their legal interests. Once the system is in place, i.e. from 1 January 2024 onwards, all requests, declarations, notifications and decisions under GZ-1 will be submitted or issued through the eGraditev system, with a few exceptions. The exceptions, where applications can also be made in writing, are: (i) building permit applications for a non-complex building and change of occupancy, (ii) construction commencement notices, and (iii) legalisation applications. In these cases, if the applications are made in writing, the administrative authority or municipality will have to convert the application to electronic form and enter it in the system. 

Author: Eva Jean, Associate