Illegal construction and demolition order: unlawful building and legalisation

A structure is unlawful where it was built without the required building permit, and in deviation where it departs from a permit that was granted. In both cases the building authority can intervene under the Salzburg Building Police Act and issue a building-police order to ensure the lawful condition.

While the works are still ongoing, the authority can use a stop-work order. It halts further building activity until it is clarified whether the structure can be permitted. The stop-work order serves to prevent a completed unlawful state from being created while the question of the permit remains open.

Where the structure is already built, the authority can require restoration of the lawful condition. This order can be directed at the removal or demolition of the unlawful structure. The removal or demolition order is the sharpest instrument and applies where the structure is not capable of approval.

An unlawful structure does not necessarily have to be demolished. The owner can apply for a subsequent building permit. What matters is whether the existing structure is capable of approval in itself, meaning whether it can be reconciled with the zoning and the building-law requirements.

If the permit can be granted because the structure meets these requirements, the previously unlawful state is cured. As long as an application for a subsequent permit is pending, a removal or demolition order that has already been issued is generally held back, because the outcome of the examination is to be awaited.

If the permit fails, however, because the structure conflicts with the zoning or breaches building-law requirements, the order to restore the lawful condition stands. Removal or demolition is then the consequence. An early examination of the capacity for approval is therefore the central step.

A widespread misconception is the assumption that an illegal building becomes lawful by itself after a few years. That is not correct. The unlawful state is not cured by the passage of time alone. There is no limitation similar to acquisitive prescription that legalises an illegal building in itself.

This means that the building authority can in principle intervene even after a longer time and require restoration of the lawful condition. Those who rely on a long-standing unlawful structure being tolerated bear the risk of a later building-police order.

The only reliable way to secure an unlawful structure permanently is the subsequent building permit. It creates legal certainty because it formally brings the structure into the approved state. The mere passing of time does not replace this permit.

In Austria building law is a matter for the federal provinces. Each province has its own building regulations and building-police rules, which is why the requirements on permits, orders and deadlines differ from one another. What applies in one province cannot simply be transferred to another.

This article describes the position in Salzburg on the basis of the Salzburg Building Police Act. For a structure in another province its own building-law provisions are decisive. Before any assessment it is therefore to be clarified which provincial law applies to the specific location.

Precisely with unlawful construction the details of the respective provincial law are decisive. A legal assessment takes account of the building law applicable at the location and places which orders are threatened and which routes to legalisation are open.

First obtain clarity about the permit position: which building permit exists and where does what was built deviate from it? Compile the existing decisions and plans. This basis is necessary in order to assess the capacity for approval.

Then examine whether the structure is compatible with zoning and building law and is therefore capable of subsequent approval. Sometimes the capacity for approval can be achieved through adjustments to the structure. Do not respond to a stop-work order or an order by continuing to build on your own initiative, but within the deadlines set.

If you receive a building-police order or a demolition is on the table, early legal advice is sensible. A legal assessment clarifies whether a subsequent permit works and how to accompany the procedure. An overview of the consequences in construction is provided on our focus page on construction damages and liability.