Building Rights in Estonia: Too Large a Coefficient of Luck
In Estonia, it can happen that despite all planning and approvals, a building permit still cannot be obtained. The reason is not a lack of law, but rather its contradictory and illogical interpretation. Practice shows that building rights do not always depend on the law, but far too often on luck, write Villy Lopman, sworn advocate at the law firm RASK, and advocate Elvi Tuisk.
Below we provide examples where the law allows construction, but administrative practice tends to prevent it – not for substantive reasons, but due to contradictory logics or grammatical approaches.
Building in a nature reserve – prohibited, even though the law allows it?
The dream of a new home often falls apart when it turns out that the plot is located in a nature reserve. Protection regulations often do allow construction there if it does not harm the protection objectives. However, the interpretation of what is consistent with this provision and what is not is often subjective.
If one official believes that a low residential building at the edge of the forest damages the landscape, another may consider it suitable. In practice, however, neither option usually turns out to be acceptable, and the refusal is justified in vague terms that could apply to any nature reserve and building. Thus, if a protection regulation allows for a certain negative impact, then the acceptable level of impact should be defined. However, this boundary does not clearly exist, which makes the entire process unpredictable.
Under one hectare? Forget about it or not?
Many general plans exclude building rights for residential buildings in scattered settlements on plots smaller than one hectare. The idea is understandable – to preserve the traditional settlement pattern of rural areas.
But what if the smaller plot has historically always been of such a size? Logically, such a smaller farm should then also be part of the historical settlement pattern and help preserve tradition. Unfortunately, often only grammar is considered – under one hectare is not allowed – regardless of the situation and history. Thus, the rule that was meant to protect the objective becomes an obstacle to achieving it. In such cases, the decision of the administrative body too often depends on good luck.
New owner, old contract – who builds the road then?
To implement a plan, an administrative contract is sometimes concluded, whereby the developer – usually the property owner – undertakes to build out public infrastructure, such as an access road. Often this is linked to the granting of a building permit: before the road is completed, no permit is given for building a structure.
But what happens if the property is sold before the road is completed? An administrative contract – like any contract – applies only to the parties that signed it. If the obligation to build the infrastructure is not entered in the land register (for example, as a servitude or mortgage), the local authority cannot transfer it to the new owner or refuse a building permit due to non-fulfillment of the contract.
An exception is the situation where the plan adoption decision explicitly states that a building permit will be issued only after the infrastructure is completed. Then the authority can refuse to issue the permit – but even in this case, it cannot demand that the new owner build the road. On the contrary, the new owner may have the right to demand that the local authority itself build the infrastructure. To avoid this, in practice there is an attempt to enter the original obligation in the land register so that it moves with the property right and is visible to future buyers.
When the plan and the law conflict
A typical conflict arises when a valid detailed plan allows construction, but later, for example, a building prohibition zone has been expanded by a general plan. Let us imagine a situation: a valid detailed plan allows building 50 meters from the sea, but a new general plan sets a prohibition zone of 100 meters.
Which rule to follow? The Supreme Court has expressed the opinion that if a valid detailed plan and a subsequent building prohibition zone conflict, the regulation that is more favorable to the person should be applied – in this case, the detailed plan. This ensures legitimate expectations.
Unfortunately, administrative practice is not always consistent. In some local authorities, a valid detailed plan is automatically considered outdated in light of the new general plan, and a building permit is not granted. The result is a lack of legal certainty – a person does not know whether they actually have building rights or not.
Not the law, but the system is broken
In summary, obstacles to construction do not arise from a lack of law, but from its random and grammatically-based interpretation. In the same situation, one local authority may grant a permit while another refuses. In this way, balanced regional development in Estonia is ultimately hindered.
The system needs transparency and predictability. A person must know whether they have the right to build or not – and this should not depend on luck. In a state based on the rule of law, a building permit should not be a lottery.
