Construction Offence Regularisation in Flanders: Procedure, Risks and Solutions

What is a regularise construction offence? Regularising a construction offence is the legal process whereby you can still get a environmental permit obtains for constructions or changes of function that were carried out in the past without the proper permit or in violation of the permit. The aim is to reconcile the factual situation with the legal reality, thus avoiding risks of fines, remedial action and depreciation when sold.

Many properties in Flanders suffer from historical building violations. For owners and property investors, it is crucial to know that prescription of a crime does not equate to a licence.

What constitutes a construction offence?

A construction offence (or construction violation) includes more than just “building without permission”. The Flemish Code of Town and Country Planning (VCRO) considers the following situations, among others, as punishable offences:

• Unlicensed construction: Erecting a structure without planning permission.
• Non-compliant construction: Building contrary to the granted permit or approved plans (e.g. different dimensions, materials or implantation).
• Job changes: Changing the main function of a property (e.g. from residential to office or from agricultural to residential) without a permit.
• Conservation: Maintaining the above illegal situations in spatially vulnerable areas (e.g. forest or natural areas), even if you did not create them yourself.

Why regularisation is necessary (3 Major Risks)

Ignoring a construction violation carries significant financial and legal risks. We distinguish three main motives for regularisation:

1. Enforcement and Sanctions

The police or regional officials may issue a Official report (PV) set up after a complaint from neighbours, a site inspection or even via aerial photography.

• Consequence: You risk criminal fines or, in serious cases, a demolition order (remedial action).
• Expert Tip: “The argument ‘it has been there for 20 years’ offers no guarantee against remedial claims. The government is increasingly taking stricter action through enforcement policies. This especially in spatially vulnerable areas.”

2. Block on renovations

Do you want to extend or energetically renovate a property? If there is a building violation on the plot, a new permit is usually refused.

• New crime: Carrying out work on an unlicensed section is considered a new construction offence, making the legal situation more complex.

3. Impairment on sale

When selling property, a information obligation. You should inform potential buyers about known construction offences.

• Financial impact: A non-regularised property is worth less. Investors and buyers will deduct the estimated regularisation costs (and the risk of refusal) from the offer price.
• Mortgage loan refusal: The requirements to get a mortgage loan are getting stricter. In practice, we are seeing more and more refusals because there is a construction crime on the property.
• Liability: Are you concealing a breach? Then after the sale, you risk a claim for hidden defects or even the annulment of the sale.

How does the regularisation procedure work?

Regularising a building violation procedurally follows the same route as an ordinary permit application through the Environment counter, but with additional areas of concern.

1. The Application: You will submit a file in which you will explain the existing condition and the desired (to be regularised) state describes.
2. Burden of proof: Has a PV been drawn up? Attach this. Are there any verdicts? Attach these.
3. Review: The municipality or the region assesses whether the construction meets the current Planning regulations.

How does the government assess your application?

This is a crucial stumbling block. The government tests against the regulations that apply at the time of application, not the rules of when it was built.

• Stricter rules: Was the extension permissible 15 years ago, but not now due to changed zoning plans? If so, regularisation will be refused.
• Not an acquired right: The fact that the offence was never prosecuted (tolerated policy) does not automatically make it licensable.
• Good faith is irrelevant: The fact that you “didn't know” when you bought it is not legally an argument for the urban planning assessment.

Criminal vs. civil consequences

Filing a regularisation application affects penalties but does not completely erase the past.

• Criminal prescription: The time limit within which the government can prosecute you (fines) is between 3 and 10 years, depending on the nature of the infringement and acts of interruption (such as a PV).
• Impact of regularisation:
  • If you regularise during proceedings, the court often can no longer impose a remedial measure (demolition).
  • It shows “good citizenship”, which can lead to a reduced sentence or suspension.
• Punishment does not preclude regularisation: Even if you are fined, the property remains unlicensed. You still need to regularise to get the property legally in order (“regulate”).

FAQ: Frequently asked questions on Construction Crime

Is a construction offence time-barred after 10 years and therefore legal? No, this is a widespread misunderstanding. The criminal proceedings (the attorney's right to fine you) may be time-barred after 5 or 10 years, but the illegality of construction remains. The property remains “unlicensed”, causing problems in case of sale or new works.

Can I sell my house with a construction violation? Yes, you can, but you have a notification requirement. The notary will request urban planning information. If this reveals a violation, the buyer must agree. This often results in a lower sale price or a suspensive condition that the seller regularises first.

What does regularising a construction violation cost? The cost consists of three parts:

1. The administrative costs for the permit application (municipality).
2. An architect's fee (if plans are required).
3. Any administrative fines or capital gains tax (e.g. increase in property tax) linked to the regularisation permit.

About the author: Niels Vansimpsen is an environmental law solicitor at Confianz. He assists with permit applications throughout Flanders. He also assists clients throughout Flanders with lodging objections or appeals against permit applications that have been submitted. In addition, he provides assistance with construction and environmental offences and advises clients on the feasibility of their property projects.

Do you have questions about regularising a construction crime? If so, please feel free to contact with our environmental law lawyer. Then we can go over your options together.