We often receive questions about the regularisation of building violations and building offences. After all, there are many properties in Flanders where (additional) construction has taken place in the past without a permit or not according to permit. However, there are a number of risks and restrictions attached to property subject to a building offence. Therefore, in this article you will find more information on regularising a construction offence.
What is a construction offence?
A construction offence is basically the same as a construction violation. It means building or remodelling without a permit or not according to plan. A change of function without a permit is also a building offence.
Why regularise a construction offence?
There are several situations in which it is useful to proceed with the regularisation of a construction offence. For example, following its determination by the police. Officials of the Flemish Region can also establish it. This can be based on a complaint from neighbours, but this is not necessarily required. For example, they can also draw up a PV during an inspection at the site or via aerial photos. You then run the risk of fines or remedial measures.
You may also want to rebuild. Or that you want to add on to your existing home. In this case, it will not be possible to remodel without regularising the building violation. Especially if you are planning works on the unlicensed section. When carrying out works on this unlicensed section, you may be committing a new building offence. The government may sanction you again for this. Even if the initial building offence has expired.
Finally, at the selling your property prior regularisation may be appropriate. After all, a construction crime leads to a decrease in value. The buyer may use it to drive down the price. Thus, you should report the existence of a construction offence to potential buyers. If you fail to report a construction offence, you risk a liability claim.
How does a regularisation procedure work?
You can regularise a construction violation by applying for an environmental permit. The procedure for this is the same as for an ordinary licence.
If the construction violation was established in a PV, you should attach it to your application. The same applies to any court decisions on the construction violation. For example, if you were ordered to carry out alteration works. The application should also show what the condition was before the violation took place.
How does the government assess your application for regularisation?
The government will assess the application based on the regulations in force. Even if these have been tightened since the works were carried out. Thus, the works may have been licensable at the time of execution, but are no longer so at the time of the application.
The fact that you were not penalised for the building violation plays no role in this. After all, non-prosecution of an infringement does not mean that it is permissible. The fact that you were acting in good faith is also irrelevant. For example, if you acted on faulty information.
Therefore, always apply for a permit before carrying out any works. After all, it is not certain that you will be able to regularise these works later on. Moreover, just because something is there does not mean it will be authorised. After all, the authorities cannot be guided by the fact that the works have already been carried out.
What are the advantages and disadvantages of regularising a construction offence?
Regularisation does not exclude punishment for the construction offence. So you can still be punished for initially carrying out the works without a permit. At least insofar as the construction offence is not time-barred. The limitation period for punishment is between 3 and 10 years. This depends, among other things, on the type of construction violation. It also depends on whether the building violation has been investigated before.
Moreover, if you have tried to regularise the construction offence, this may also result in a reduced sentence. When the construction offence is regularised, the judge will also no longer be able to impose remedial measures on you. These are measures such as construction or alteration works that the judge can impose in addition to, for example, the fine that you will receive as punishment.
Conversely, punishment of the building violation also does not rule out subsequent regularisation. You can regularise the building violation even after it has been punished. This can be useful with a view to a later sale. Or for obtaining permits for later renovations.
Do you have questions about regularising a construction crime? If so, please feel free to contact our environmental law lawyer. Then together we can your options overflowing.