Member of the Bar of Dendermonde since 2020.
Dutch, French en English; good comprehension German and Hungarian
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THE EX OFFICIO EXECUTION OF JUDGMENTS AND CONSTRUCTION BREACHES
What happens in case of construction breaches?
The ex officio execution of judgments
Problem statement: You are sentenced to the demolition of an unlicensed carport, outhouse, extension of the house, ... The court issues an order for repair, and thus orders the demolition of the built structure. Can the government then execute the recovery measure itself? Can this still be prevented?
Duty to perform
In principle, the convicted person is obliged to proceed with the execution of the restorative measure within the term set by the court. This restoration measure may consist of restoration to the original condition, payment of added value or adaptation works. Any further considerations of opportunity regarding the form and / or necessity of the restoration are irrelevant. The only thing that can save the convicted person is a regular and enforceable urban planning permit. The court order may thus lose its object, and the government is in turn obliged to pursue the enforcement of the court order. Off course the government does have freedom of choice. For example, it can decide to try to motivate the convicted person by forfeiting any penalties imposed. Furthermore, Article 6.1.46 VCRO also offers the possibility to proceed to ex officio implementation.
Prior advice from the Supreme Council for Enforcement Policy
If the government wishes to execute the conviction on its own initiative, it is obliged to obtain advice from the Supreme Council for Enforcement Policy.
But what is meant by "ex officio execution"? This includes, among other things, giving the necessary instructions to a civil servant or service to implement the judgment. (See article 6.1.46. VCRO)
For example, as soon as the government orders the bailiff to proceed with the enforced execution of the judgment, a request for advice must be sent to the Supreme Court for Enforcement Policy.
This advice from the Supreme Court for Enforcement Policy can be of decisive nature in certain cases, precisely because the Supreme Court will not only advise in the context of spatial planning, but also in function of the current state of law. In addition, the Supreme Court must also verify whether the ex officio execution takes place in accordance with the principles of equality and reasonableness.
If the situation has changed in some way after the court order, this advice can still offer some relief.
The Supreme Council for Enforcement Policy can only issue a negative advice if the imposed measure has already been actually implemented, or if an urban planning permit has been obtained in the meantime.
The Supreme Court may attach conditions to a positive advice, such as implementation modalities. The Supreme Court for Enforcement Policy only has an advisory power, but this advice can then be used before the judge of attachments in the event of a discussion regarding implementation.
As soon as you have been sentenced to repair as a result of a building infringement, you are obliged to implement the remedial measure.
The government can implement the remedial measure itself, but then it must seek advice from the Supreme Council for Enforcement Policy. Then; this advice will pay attention to the changed circumstances and the principles of reasonableness and fairness. The judge of attachments can take this advice into account in any execution dispute.
The ultimate way to still prevent implementation is to obtain an enforceable permit.