Local authorities should not tolerate illegal construction

Toomas Mattson | 1/22/2014 | 2:00 PM

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TALLINN 22 January 2014 - The National Audit Office finds that local authorities should stop being lenient and passive about illegal construction and ascertain the number of such buildings and find out whether they are safe for residents and others. If necessary, they should demand demolition of illegal buildings or legitimise them retroactively after compliance with requirements has been guaranteed.

In an audit carried out in 2011 the National Audit Office found 42 new residential buildings in five municipalities bordering Tallinn and three municipalities bordering Tartu which had been built without permits. During the follow-up audit, the National Audit Office investigated what the municipalities had done with these buildings in the meantime and whether the illegal situation had been resolved. It also audited whether the Ministry of Economic Affairs and Communications had started implementing the recommendations of the National Audit Office to specify the practice of dealing with illegal buildings and to guarantee the correctness of the data in the State Register of Construction Works, which is the database of construction activities and use of buildings.
As a result of the follow-up audit the National Audit Office found that local authorities are lenient when it comes to illegal construction. Only a third of the audited illegal buildings had been processed by the local authorities in such a manner that the related documents indicate what the owners of illegal buildings are required to do to resolve the situation, and why. Fines have been imposed for illegal construction of a building in less than 20% of cases. Even if the municipality did do something, the illegal activities usually ended in the retroactive legitimisation of the building in a manner that generated no more obligations or costs for the owner of the building than those incurred by people who constructed their buildings lawfully.
26 of the 42 illegal buildings had been retroactively granted building or exploitation permits by 2013 whilst 16 buildings still had no permits. In many cases there were no documents that clarified the considerations on which local authorities decided to issue the permit retroactively or that indicated that the building had been built illegally before the permits were issued. The retroactive legitimisation of buildings focusses on formalities and there is no reassurance that the building actually complies with requirements and is safe for residents and others. There were only a few cases where local authorities had required expert analyses of the buildings or surveys, which would have made it possible to obtain such reassurance.
The fact that some local authorities have taken the situation seriously and considered construction supervision a matter of importance is evidenced by the fact that Saku, Luunja and Jõelähtme municipalities had legitimised the illegal buildings identified during the audit by 2013.
However, there were still four buildings in Rae municipality and five buildings in Tartu municipality that had not been legitimised, and no precepts had been issued to or fines imposed on their owners. This means that the situation of these buildings had not changed in three years and there are some buildings for which the local authorities claim to be unable to find reasonable solutions. Such problems would not exist if local authorities ascertained illegal construction activities as quickly as possible, stopped construction and resolved the situation before it went too far.
The Ministry of Economic Affairs and Communications had not started implementing the recommendations made in the audit from 2011. The data in the State Register of Construction Works had been streamlined to some extent, but the Ministry has removed itself from systematic inspection of how basic data are entered in the register. The public still have no access to the entire history of the construction of buildings in the register.
It is important for people that none of the buildings constructed and used on the basis of permits issued by the local authority are dangerous for themselves or other people. People also have the right to know correct information about the circumstances under which each building was constructed. When a building changes hands, both the new owner and the notary who formalises the purchase should have correct and complete information about the legitimacy of the building, the permits issued for the building or the condition of the building.

Example from Ülenurme municipality, Tartu County (photo can be downloaded here)

There is an unfinished apartment building in Ülenurme municipality whose construction was launched without a building permit in 2006. The detailed plan of the region prescribed two three-storey buildings, but the owner started building one four-storey one. Although the illegal construction took place under everyone's noses, the local authority did nothing to stop it. After the publication of the National Audit Office’s audit report in 2011, Ülenurme municipality still failed to order the owner to stop construction and instead issued them with a precept that required the owner to spruce up the building's façade and deal with landscaping, i.e. it allowed the illegal construction to continue without a building design or building permit. Apartments in the building were actively sold despite the fact that nobody had made sure that the building was actually safe. The building was only legitimised retroactively in August last year, and the expert analysis to ascertain whether the building is safe was completed at the end of the previous year.

Timeline of events:

  • in 2006 the municipality established a detailed plan which approved the construction of two three-storey apartment buildings;
  • in the same year, the owner of the plot started building without a building permit, but decided to build one four-storey building instead of two three-storey ones;
  • the general plan established in Ülenurme municipality in 2009 did not include the option to build apartment buildings more than three storeys high;
  • in 2011, after the audit carried out by the National Audit Office, the municipal government issued a precept to the owner of the building and imposed a fine of 2000 euros;
  • the precept required the owner to prepare the building design of the apartment building at Rehetare tee 1, spruce up the façade and complete the landscaping by 30 November 2012. The construction works on the site continued;
  • at the end of 2011 the municipal council initiated the detailed plan amending the general plan and following the existing solution (allowing the construction of one four-storey apartment building). The detailed plan was established on 26 March 2013;
  • the owner submitted the building design to the municipality on 28 May 2013 (i.e. considerably later than required in the precept) and did not comply with requirements;
  • The building was retroactively legitimised in August 2013 and the expert analysis to ascertain whether the building is safe was completed at the end of the previous year.

Example from Harju County

Residential building in Harku municipality (photo can be downloaded here)

  • The building was erected without a building permit in a building exclusion zone in an important green corridor in the county;
  • the building has been sold on since the municipality started dealing with the problems in 2011;
  • a precept has been issued to the new owner;
  • the municipality confirms that the new owner is a close relative of the former owner and that the new owner claims that they were unaware of the fact that the building was constructed illegally;
  • the building has been registered as the place of residence of five people since November 2011;
  • although there should be no buildings at all in the building exclusion zone, the fact that it has a so-called bona fide owner makes demolition difficult.

So-called bona fide owners

  • The law does not stipulate any obstacles to selling properties with illegal buildings if both the buyer and seller are aware of the building's condition and consent to the transaction.
  • The new owner must bear in mind that buying a property with illegal buildings may lead to additional formalities and expenses in order to legitimise the building or, in the worst case scenario, a demand that the illegal building be demolished.

Toomas Mattson
Head of Communication Service, National Audit Office
+372 640 0777
+372 513 4900

  • Posted: 1/22/2014 2:00 PM
  • Last Update: 8/16/2015 12:08 AM
  • Last Review: 8/16/2015 12:08 AM

Example from Ülenurme municipality, Tartu County.

The National Audit Office

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