Building right. Permit for basic construction, extension and upgrade.

When we want to carry out construction work on someone else's or our own real estate, we should have a building permit. In such situations, questions often arise, such as what constitutes a building right, how it is established, exercised, when it is time-barred, etc.

Other legal requirements, such as the coordination and approval of an investment project, as well as the conclusion of a contract with a consultant to issue an assessment for the respective investment project, must be complied with before construction can begin. All of this is necessary in order for a building permit to be issued and everything related to it to be legal.

What is a building right?

The right of construction is the fundamental right of citizens and businesses to create new buildings or modify existing ones. It defines the procedures and requirements for obtaining a building permit, which is necessary before construction can begin. It includes regulations on the extent of the territory which determine what types of buildings can be built in certain areas.

The construction law defines the responsibilities and obligations of the various participants in the construction process, such as owners, construction companies, designers and others.

According to the Property Law , the owner of the land also owns the buildings and plantations on it, unless otherwise established. In the case of the right to build, the owner of a piece of land transfers this right to a third party. By virtue of the ceded right, that person may construct a building on the property and acquire ownership of the building independently of ownership of the land.

If there has been a change in the size of the property after the establishment of the building right, this affects the extent of the right that the owner has regarding the use of the land.

Establishment

The right to build is established by contract or administrative act.

For the establishment of a building right, a contract shall be drawn up in the form of a notarial deed and shall be concluded before a notary with area of operation at the location of the immovable property, after which it shall be entered in the Property Register at the Registry Agency.

It is a good idea to draw up a preliminary contract before signing the deed for the establishment of the building right, in which all the agreements between the parties under the deed should be entered.

It can be compensated - in return for compensation or payment of an appropriate sum - as well as gratuitous. Where a building right is established on state or municipal property, the superficies shall be established by an administrative act of the relevant state or municipal authority.

Can the building right be transferred?

The building right may be transferred from the moment of its establishment until the completion of the building in rough construction.

What is meant by rough construction? Rough construction is a building or structure on which the enveloping walls, including the roof, have been completed without or with varying degrees of finishing. These are the parts and elements such as foundations, slabs, beams, staircases of buildings, roofs, streets and other parts that are intended for common use.

When is a superficies or building rights terminated?

The building right is terminated when the period for which it was established expires - in this case, after its expiry, the ownership of the building will pass gratuitously to the owner of the land.

In case of relinquishment of the building right - if I have acquired a building right but later decide to relinquish it, I must do so in writing with notarized signature. If I relinquish my right to build after I have started construction, the owner of the land becomes the owner of what has been built.

When the building passes into the ownership of the landowner - when I have built a building on the basis of a building right and transferred it to the landowner through some kind of legal transaction, the landowner also becomes the holder of the building right over it. And because ownership of an immovable property includes the owner's ability to build on it, my building right is terminated.

What rights do I have when I have the right to build an extension?

• The right to carry out construction work for the extension or addition to an existing building, in accordance with an investment project.
• To acquire ownership of the extension or addition separate from ownership of the building.
• To take possession of an appropriate adjoining premises.
• To use someone else's land if I need it to use the annexe and extension.
• As the person who built the building, I can dispose of it by donation, exchange, lease, but if I decide to sell even just part of it, I must first offer it to the owner of the land and only after his refusal to a third party.

Extinguishing the building right

The right to build shall be extinguished by the expiry of the period for which it has been ceded, as well as by the expiry of the limitation period if the right is not exercised for 5 years.

The commencement of the limitation period shall be deemed to be the realisation of the building right. If there are obstacles in this respect, for example the existence of a building prohibition, the starting point of the limitation period, irrespective of when the right was created, will be linked to the removal of that obstacle.

The building right shall not be extinguished if the building or part thereof perishes (unless otherwise agreed at the time of the deed).

Given the complexity of the matter, sometimes the actions of the parties in the process can lead to undesirable results, so the best thing you can do is to seek the competent opinion of a lawyer before taking actions.