We regularly receive questions about the statute of limitations for a construction violation. Until when is there a risk of a fine or penalty? Therefore, this article explains more about when a construction offence is time-barred and what the consequences are.
What is a construction offence?
Basically, a building offence occurs when a building was constructed without a permit or not according to the plan. A change of function without a permit is also a building offence.
Find more information on when a construction offence exists here.
When does a construction offence expire?
Several factors come into play in the statute of limitations for a construction crime. Consider:
- The severity of the construction violation;
- determinations have already been made on construction violation;
- The continuing or non-continuing nature of the construction violation.
Below, we elaborate on the factors of prescription of a construction violation.
First criterion: the seriousness of the construction violation
Depending on the severity of the building violation, the legislation distinguishes between urban planning crimes on the one hand and urban planning infringements on the other hand.
Urban planning offences are generally time-barred after five years from the day the crime was committed.
The category of urban planning offences includes more serious building offences such as building without a permit or breaching a strike order.
For urban planning infringements this period is 3 years. It also runs from the day the infringement took place.
The category of urban planning violations is reserved for lighter offences. These include performing notifiable acts without prior notification and the violation of certain information obligations.
Read more about environmental permit exemption and notification requirement here.
Second criterion: have determinations already been made on construction violation
The period of 3 or 5 years mentioned above may be extended. This is done by committing acts of investigation or prosecution within this 3 or 5-year period. In this case, a new period of 3 or 5 years starts to run after this act of investigation or prosecution.
This does not apply to acts committed after this initial period of 3 or 5 years has expired. Acts committed outside this initial period do not extend the limitation period.
By 'acts of investigation or prosecution' we understand, among other things: the preparation of an official report on the construction violation. The notification with the intention to impose a sanction is also always an act of prosecution.
Third criterion: whether or not the construction violation is continuous
In principle, only the actual erection of a structure erected without a permit is a building offence. Whereas in the past one also committed a building offence during the period that the structure was left standing afterwards (the so-called 'conservation'), this is no longer the case.
However, there are two exceptions to this principle:
- Maintaining an unlicensed structure in spatially sensitive area such as forest or nature reserve. For this, the government can still impose an administrative fine.
- When one uses a building contrary to its purpose. In this case, one commits an urban planning offence as long as the conflicting use continues.
Thus, in these two cases, the construction violation does not lapse. Therefore, one can be permanently sanctioned for these building violations.
The statute of limitations on a construction violation: implications for my property?
However, the fact that a construction violation is time-barred does not mean that it no longer affects your property.
For example, the presence of a time-barred construction violation may allow you to:
- encounter problems at obtaining a subsequent licence;
- encounter problems at the subsequent sale of your property (After all, prospective buyers are often denied loans for homes with building violations);
- Still, you risk remedial measures. Indeed, the time limits for bringing such a claim are in some cases wider than the actual limitation period.
Read more about the impact of a construction violation on your property here
Can I regularise a construction violation?
We will always have to consider the question of whether you can regularise a building violation 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.
Given the consequences of the presence of a construction violation, regularising it is always advisable.
Read more about regularising a construction offence here.
Did you questions About regularising a construction violation? Then get in touch using the form below so that we can together be able to see your options.
