Plot regulation plans and the implementation of regulation

In assessing the expropriatory effect of plot regulation plans adopted before the Spatial Development Act (ZUT) came into force, the key question is what constitutes an “implemented” plan. Whether regulation had been implemented under the former Territorial and Settlement Planning Act (ZTSU) must be assessed as at 31 March 2001, when the ZUT came into force. Under § 8(1) of its transitional provisions, plot regulation plans already implemented at that date retain their effect. Where a plan is amended under Article 32(1), points 2, 4 and 5, of the repealed ZTSU, a new plan may revert to the property boundaries predating regulation only if ten years have not elapsed since possession was taken of the land allocated under the plot regulation plan. If more than ten years have elapsed, the plan must be treated as implemented, which precludes such an amendment. This interpretation of “implemented regulation” has also been applied where, when the ZUT came into force, compensation for the portions of neighbouring land allocated to a plot remained unpaid but possession of those portions had been taken more than ten years earlier.

When acquisition by prescription of a physically defined part of an adjoining regulated plot is claimed before a district or regional court, the court must first clarify the claimant’s case in the action to recover possession on the basis of title (Article 108 of the Ownership Act). Does the claimant’s control over the portion allocated to an adjoining plot under a pre-existing regulation plan amount to the exercise of a right of retention? Was the plan implemented under the applicable planning legislation or within the time limits in § 6(2) and (4) of the Spatial Development Act? If the plan was not implemented and the allocated area is held by an owner who has not received the compensation due, the dispute concerns the right of retention and the lapse of the plan’s expropriatory effect, not acquisition by prescription. If the plan was implemented but the former owner, despite having received compensation, remains in possession of the allocated area and relies on prescription, the court must examine of its own motion whether the conditions in Article 200 of the Spatial Development Act are met.

Guidance is provided by Interpretative Decision No. 3 of 28 March 2011 of the Supreme Court of Cassation, General Assembly of the Civil Colleges, in interpretative case No. 3/2010; Interpretative Decision No. 3/1993 of the General Assembly of the Civil Colleges of the Supreme Court; and the extensive case law of the Supreme Court of Cassation.

This article is not a legal opinion or advice about a particular situation or person. The author makes no claim to cover the Spatial Development Act and plot regulation exhaustively. For legal assistance with a similar case, consult a lawyer specialising in property law.