Buying property with a construction violation: what to look out for?

When selling real estate, it is common to see construction violation. But as a buyer, how can you know if there is a building violation on the property? And what is the best way to deal with it? This article gives you More explanation on the practical aspects of a property purchase with a construction violation. You will also find more information on regularising a construction violation.

When is there a construction violation?

A building violation means that construction or remodelling was done without a permit or not according to plan. Thus, certain parts or extensions of the property are without a permit. It is also possible that a permit was granted, but the plan was not followed. Likewise, the function of the property may have been changed without a permit.

Thus, there may be a construction violation in the following cases:

  1. The building was not carried out according to the original planning permission. For example, it is longer, wider, deeper or higher than allowed, or there is a different roof shape. Or the owner added certain spaces that were not anticipated on the plans.
  2. Certain parts or extensions were added later or remodelled without permission or not according to plan. For example, a veranda or garage was later added, a large driveway was built or a large garden house or workshop was added in the garden.
  3. The owner modified the destination of the building without permission. For example, he converted a commercial property into a flat or vice versa.

Is the seller obliged to inform me of the presence of a construction violation?

Of course, it is always best to check with the seller first. After all, they have the most information. Often the seller already alerting you to the presence of a construction violation.

If the seller deliberately conceals this, there may be a hidden defect. It is possible to hold the seller liable for this. In practice, however, this is often difficult and not the most appropriate option. For example, there are often clauses in the contract that exclude liability for this or point to the buyer's obligation to investigate. Moreover, you will also have to prove that the seller deliberately withheld the presence of the construction violation. This is not easy to prove.

Read more about how you can find out if there is a building violation via a town planning survey / real estate due diligence here.

There is a construction violation on the property: now what?

Don't just agree with a clause in which you, the buyer, acknowledge knowing about the construction violation. Indeed, this often removes your claim to any compensation from the seller. Such a clause also usually explicitly excludes damages.

When you identify a construction violation, you have several options:

  1. You don't let the sale go ahead.
  2. You let the sale go ahead, but at a reduced purchase price.
  3. The sale will go ahead, but under the suspensive condition that a regularisation permit is before it within a certain timeframe.
  4. The sale goes ahead, but the parties block part of the purchase price under the suspensive condition of a regularisation permit.

However, you should be careful. For example, if you let the sale go ahead at a reduced purchase price, you should bear in mind that part of the property is still unliquidated.

How does the presence of a construction violation affect me as a buyer?

The presence of a construction violation can always be sanctioned. At least insofar as the construction violation is not time-barred. The police will draw up a PV for this. Officials of the Flemish Region or municipality can also do so.

The drafting of such a PV can in principle also be done after sale. The PV will then be in the name of the seller as offender. It will also be the seller as offender who is sanctioned.

This may still affect you as a buyer. One can also oblige the seller as a violator to carry out remedial measures. This may consist of carrying out construction or adaptation works. As the new owner of the property, you will have to allow these remedial measures.

Also when there are no PV yet is, the presence of a construction violation has implications for the buyer. For example, neighbours may be able to bring a claim if they are inconvenienced by the building violation. Again, the court may order demolition or alteration works.

You can also later face difficulties in obtaining a licence. For example, if you want to renovate the property or give it a new purpose.

Learn more about the consequences of a construction violation on your property here.

Can I regularise a construction violation?

Yes, this can be done. We should always consider this in the light of the applicable regulations. In doing so, we take into account the rules, agreements and plans for the location of the building.

Unfortunately, it will not always be possible to regularise a building violation. However, this does not necessarily mean that you have to demolish it properly. You can see if you can modify the building, for example, and thus still bring it into compliance with the applicable rules. The procedure to regularise a building violation is the same as for a environmental permit applications.

Learn more about regularising a construction violation here.

Can I just add on to the house later?

For adding to an existing house, there are specific rules to prevent cluttering. In some cases, there is an exemption or a mere notification requirement. But you may have to apply for a permit for an overhang, for example.

Here you can find more information on adding on to an existing house.

Are there construction violations on the property you plan to buy? Or do you have questions about regularising a construction violation? If so, please feel free to get in touch. Confianz handles file for all of Flanders.

Our environmental law lawyer answers your urban planning questions and advises on the purchase agreement / compromise.

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