Council of State to review legalization of urban planning violations in common areas

The legality of regularizing urban planning violations in common areas of a property without the consent of all co-owners will be examined Saturday by the plenary session of the Council of State, Greece’s highest administrative court.

This issue is of significant interest, as it not only concerns the closure of a section of a common area but potentially any deviation from the building permit that affects the common areas of a building.

The case was previously deemed unconstitutional by the fifth chamber of the Council of State but was referred to a higher level due to its importance.

In a three-story apartment building in the Municipality of Papagos – Holargos, a ground-floor homeowner illegally extended his home into the open area. He attempted to legalize this extension in 2010 under the second law for semi-open spaces (known in Greek as “imiypaithrioi”). However, a relative and co-owner opposed this and succeeded in overturning the legalization under the specific law and its subsequent repetitions under laws 4014/11 and 4178/2013.

A new attempt to legalize the extension was made under law 4495/2017, which allowed for the legalization of violations in common areas with a simple majority (50%) of co-owners. The declaration was accepted, prompting the protesting relative to appeal to the Council of State for its annulment. Notably, the violator had his case considered under four of the five laws regarding unauthorized constructions enacted since 2009.

The Council of State’s decision (No. 91/2024) vindicated the protesting relative, based on two main arguments:

Firstly, urban planning laws designate common areas of a building for use by all residents and these spaces should remain uncovered for urban planning reasons. Thus, closing such areas “without investigating whether this contradicts the prevailing building conditions and limitations of the relevant urban planning scheme and whether there is an overrun of the permissible coverage… and especially with a simple majority of co-owners… violates Article 24 of the Constitution, as it disrupts and distorts rational urban planning.”

Secondly, the illegal closure of spaces intended for all residents “contravenes the constitutional principles of the rule of law and the respect and protection of individuals, as well as the constitutional principle of equality.” This is because the state “must guarantee the faithful application of laws in favor of citizens and protect the legally acquired goods, not the illegally obtained ones,” ensuring that law-abiding citizens are not placed “at a disadvantage.”

The decision on this issue will have broader implications, as a ruling in favor of the appellant could halt the legalization of unauthorized constructions in common areas. Moreover, depending on its wording, it might apply to entirely different situations, such as the legalization of deviations from building permit plans to the detriment of a building’s common areas, a common issue in buildings in Greece from the ’70s and ’80s.