A building is unlawful when it is carried out: in non-compliance with the provisions of the applicable detailed development plan and without construction documentation; without approved investment projects and/or without a building permit; with substantial deviations from the approved investment project; using construction products that do not meet the essential requirements for construction works; or in breach of the rules governing the execution of construction and installation works, where this affects the structural integrity and safe use of the building and makes it impossible to bring the building into compliance with statutory requirements.
Tolerable buildings are regulated in § 16 and § 127 of the Transitional and Final Provisions of the Spatial Development Act. An analysis of these two provisions allows, in general terms, the identification of several categories of buildings that the legislator qualifies as tolerable.
Buildings under Paragraph 1 of § 16 of the Transitional Provisions of the Spatial Development Act. These are buildings constructed by 7 April 1987 for which no construction documentation exists, but which were permissible under the applicable detailed development plans and under the rules and standards in force at the time of their construction or in accordance with the Act. They are tolerable buildings and are not subject to demolition or a ban on use, and they may be the object of a transfer transaction upon presentation of a certificate issued by the authorities empowered to approve the relevant investment projects, confirming that the buildings are tolerable.
Buildings under Paragraph 2 of § 16 of the Transitional Provisions of the Spatial Development Act. These are buildings commenced during the period from 8 April 1987 to 30 June 1998, but not legalized prior to the entry into force of the Act. They are not subject to demolition provided that they were permissible under the applicable detailed development plans and under the rules and standards in force at the time of their construction or pursuant to the Act, and provided that they were declared by their owners to the approving authorities by 31 December 1998.
Buildings under Paragraph 3 of § 16 of the Transitional Provisions of the Spatial Development Act. These are unlawful buildings commenced after 30 June 1998 but not legalized prior to the promulgation of the Act. They are not subject to demolition if they were permissible under the applicable detailed development plans and under the rules and standards applicable during the relevant period or pursuant to the Act, and if they are declared by their owners to the approving authorities within six months from the promulgation of the Act.
Buildings under Paragraph 1 of § 127 of the Transitional and Final Provisions of the Amending Act to the Spatial Development Act. These are buildings constructed by 31 March 2001 for which no construction documentation exists, but which were permissible under the provisions in force at the time of their construction or under the provisions currently in force pursuant to the Act. They are tolerable buildings and are not subject to demolition or a ban on use, and they may be the object of a transfer transaction upon presentation of a certificate issued by the authorities empowered to approve the relevant investment projects, confirming that the buildings are tolerable.
Tolerable buildings with a permanent planning status under an applicable detailed development plan may be extended, added to vertically, and may undergo major repairs, reconstruction, and conversion; their designated use may be changed, and all permissible construction and installation works may be carried out in compliance with the provisions of the applicable detailed development plan. By contrast, tolerable buildings without a permanent planning status under the applicable detailed development plan may be internally reconfigured, their use may be changed, and repairs may be carried out, provided that their external outlines are not altered horizontally or vertically and that no new load-bearing structures are constructed or existing ones reinforced.
The Chief Architect is the competent authority to issue or refuse to issue a certificate of tolerability. Most commonly, a certificate of tolerability is issued only in cases where the request is made for the purposes of a transfer transaction, as well as in proceedings for the removal of an unlawful building, in which the owner must prove its tolerability in order to avoid demolition. A certificate of tolerability cannot transform an unlawful building into a lawful one.