How fines for unauthorized construction imposed by the planning authority are addressed, first at the administrative level and subsequently before the courts.
Inspection Report with fines for unauthorized construction
The inspection report establishes the unauthorized construction or change of use. The inspection report sets out the location of the unauthorized construction with coordinates in the EGSA ’87 reference system, a brief description with a sketch, its dimensions and the planning provisions that have been breached. The same report includes the calculation of retention and erection fines, which sometimes, in our view – always in cooperation with the engineer – have not been calculated correctly or lack any legal basis, and have certainly not been brought under any law on unauthorized construction. The inspection report concerning unauthorized construction constitutes an in rem administrative act, since it relates to the unauthorized construction itself and not to its respective owner, possessor, detainer or builder.
Objection (administrative appeal) against the Inspection Report
The inspection report concerning unauthorized construction is challenged by lodging an administrative appeal within an absolute deadline of 30 days from its service on the competent Authority, which then forwards it, within 30 days, to the relevant SYPOTHA. However, if the administrative appeal is not lodged, the inspection report becomes final.
More specifically, SYPOTHA, when seised of special administrative appeals against the inclusion of unauthorized constructions in regularisation schemes, examines them solely as to their compliance with the provisions of the law, in particular as to the admissibility of inclusion under Article 2, the classification of the unauthorized construction under Article 9, and the lawfulness and sufficiency of the supporting documents submitted (Article 11). The two-month period within which SYPOTHA must rule begins on the date the appeal, the case file and the recommendation of the Planning Service (Y.DOM.) reach it, and is an absolute deadline, since under the express provision of the law, where SYPOTHA fails to issue a decision within the aforementioned two-month period, the appeal is deemed to have been tacitly rejected.
Consequently, a decision by SYPOTHA on the appeal issued after the expiry of the two-month deadline is issued without temporal jurisdiction. SYPOTHA cannot revisit the case, either on its own initiative or upon a request for reconsideration, save only to revoke its decision on the ground of lack of temporal jurisdiction.
The decision on the appeal is issued on the basis of purely objective data and is unrelated to any subjective conduct of any person connected with the particular inclusion (Council of State (StE) 419/2021).
Judicial protection upon rejection of the appeal against the inspection report
Following any rejection of the appeal against the inspection report, judicial proceedings become available, and in particular an application for annulment of the rejection decision before the Administrative Court of Appeals. Fines for unauthorized construction – irrespective of the amount – fall within its jurisdiction. It is important for the interested party to know that only grounds of legality may be raised in the application for annulment. The exceptional importance of this application for annulment lies in the fact that:
- It is the only legal remedy remaining to the interested party where the appeal against the inspection report has been rejected.
- It allows for grounds of annulment to be raised concerning the lawfulness of the imposition of the fines.
- It provides, in a sense, the basis for filing an opposition against the tax-office certification of the debts certified following their finalisation by the competent Y.DOM. at the corresponding tax office (DOY).
- It also allows for the filing of an application for suspension in order to suspend the fines that have been imposed and from which the interested party is at risk.
- If this too is rejected, an appeal may be lodged before the Council of State, provided that an error vitiated the decision of the Administrative Court of Appeals.
- See also article Administrative Law Lawyer
- See also article Planning & Forest Law Lawyer
- See also article Contribution in Land and Money
- See also article Civil Service Law Lawyer
- See also article Disciplinary Law for Military Personnel
- See also article Disciplinary Law for Police Officers
- See also article Education Law Lawyer
- See also article Lawyer for Application for Annulment
- See also article Lawyer for State Civil Liability
- See also article Lawyer for Petitions to the European Court of Human Rights (ECHR)
- See also article Medical Negligence Lawyer
- See also article SYPOTHA – Unauthorized Construction
- See also article Annulment by the Council of State of a SYPOTHA Decision
FREQUENTLY ASKED QUESTIONS ON FINES FOR UNAUTHORIZED CONSTRUCTION – SYPOTHA – ADMINISTRATIVE COURT OF APPEALS
1. What do I face if a fine for unauthorized construction is imposed on me by the Planning Authority?
The inspection report of the competent Y.DOM. establishes the unauthorized construction or change of use and calculates two fines: an erection fine (one-off) and a retention fine (annual, until demolition or legalization). The amounts are often particularly high and, if not challenged in time, the report is finalised and the fines are certified at the tax office (DOY), with all the consequences this entails (seizures, refusal to issue tax clearance certificates).
At the same time, the inspection report operates in rem, that is, it burdens the property itself irrespective of the owner, possessor or builder, and therefore affects any future transfer.
2. How is the inspection report and the fine challenged?
The owner lodges an administrative appeal (objection) before SYPOTHA within an absolute deadline of 30 days from service of the inspection report. The appeal is filed with the competent Y.DOM., which forwards it together with the file and its recommendation to SYPOTHA.
The great practical value of a timely objection is that the collection of the fines is automatically suspended until SYPOTHA issues a decision on the appeal. By contrast, if the 30-day deadline lapses without action, the report is finalised, the fines are certified at the tax office, and any subsequent legal remedy depends on whether an opposition against the tax-office certification is upheld.
3. What does SYPOTHA examine and how long does the procedure take?
SYPOTHA sets a hearing date, at which the interested party (together with their lawyer and engineer) sets out the grounds for annulment or amendment of the inspection report. It examines purely objective criteria: correct classification of the unauthorized construction, accurate calculation of fines, lawfulness of the imposition, admissibility of inclusion in a regularisation law, and sufficiency of the supporting documents (Council of State (StE) 419/2021).
From filing to issuance of a decision, several months usually elapse, depending on the workload of the relevant Committee. During this period, the fines remain suspended, which provides time for gathering documentation or for inclusion in a regularisation law.
4. What can I do if SYPOTHA rejects my appeal?
An application for annulment may be lodged against the rejection decision of SYPOTHA before the Administrative Court of Appeals within a deadline of 60 days from service. Fines for unauthorized construction fall within its jurisdiction irrespective of amount. With the application for annulment, only grounds of legality may be raised, such as defective reasoning, breach of an essential procedural requirement, erroneous interpretation of planning provisions or incorrect calculation of zone values.
At the same time, an application for suspension of enforcement is filed, so that the fines are not collected until a decision is issued on the application for annulment. If the application for annulment is also rejected, an appeal lies before the Council of State, provided that a legal error is present.
5. What is required to properly prepare the objection and the application for annulment?
A complete property file is required: title deeds, building permit (if any), EGSA ’87 topographic diagram, architectural plans, any prior declarations under regularisation laws (Law 4014/2011, 4178/2013, 4495/2017), photographs and the served inspection report itself. Cooperation with an engineer is crucial, in order to verify the measurements, the classification of the violation and the calculation of the fines based on zone values and the coefficients provided by law.
The technical engineer’s report and the legal grounds must be intertwined from the very outset, since grounds not raised before SYPOTHA are often not examined by the Administrative Court of Appeals.
6. What is the role of the lawyer in unauthorized construction fine cases?
The lawyer undertakes the examination of the inspection report in cooperation with an engineer, the drafting and filing of the administrative appeal before SYPOTHA, representation at the hearing and, in the event of rejection, the filing of an application for annulment and an application for suspension before the Administrative Court of Appeals. At the same time, the lawyer monitors the tax-office certification procedure at the DOY and, where necessary, files an opposition against acts of collection or compulsory enforcement.
In addition, the lawyer examines the possibility of including the property in an applicable regularisation law, which is often the most economical overall solution, and files petitions before the Council of State or the European Court of Human Rights (ECHR) when issues of infringement of the right to property arise.