Certain aspects of a 2007 law to accelerate a high-priority road-building programme have been declared unconstitutional.

The challenge was brought in the Constitutional Court in January 2008 by 36 members of the National Council. The court decided not to suspend the Act while it considered the challenge.

The unconstitutional provisions were those allowing building permit applications to be made for land (but not buildings) yet to be acquired. Applications needed only:

  • declare the current status of the land-purchase process (ie state whether title had been acquired or whether what was required to acquire it had been done)
  • include (as an alternative to providing evidence of actual ownership) a pledge to acquire ownership of a plot or provide evidence of the 'impracticability of acquiring it' by contract (a phrase criticised by the court as too vague and imprecise to be used in legislation)

In effect, the builder did not need to acquire ownership or other legal title to the land until he applied for occupation permit. Even then, the legislation imposed no sanction for failure to provide evidence of title in the occupancy procedure what was denied by the Constitutional Court

This was interpreted as an allowance of builders to start building structures on the land before they held legal title to it, an approach felt by some to amount to expropriation. Under the Constitution, expropriation can only be effected by specific legislation, not by operation of law, nor can it be reduced to an argument over compensation.

The court agreed that the effect of the law was to reduce land owners to a position of nominal ownership without being able to exercise the full rights of ownership. However, they were still able to take legal action to protect his rights to (hold, occupy and dispose of) the land (under ss. 126, 135(c) or 417 of the Civil Code in the general courts or by complaint under Article 127 of the Constitution to the Constitutional Court).

The impression that the legislation permitted one party to build on another party's land was an illusion because expropriation of the land was inevitable. The court ruled that this was a de facto expropriation procedure and, as such, must be shown to be in the public interest. This was a matter for the courts to decide and could not be predetermined by legislation.

The court ruled that allowing building procedures to take place before title to the land had been acquired was an abuse of power because it made expropriation inevitable, which in turn took away the owner's rights to resist it. It reduced the role of the building office to one of deciding how much compensation was payable to the land owner.

Although the ruling marks the end of debate about its constitutionality, it opens the door to a new discussion about indemnifying those owners already affected by the way the legislation has been put into practice.

Law: Extraordinary Measures Act (Act 669/2007 Coll.); Building Act (Act 50/1976 Coll., as amended); Slovak Constitution (Act 460/1992 Coll., as amended); Protocol 1, Convention for the Protection of Human Rights and Fundamental Freedoms

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

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The original publication date for this article was 11/04/2011.