Preserved buildings; Legislation
Introductory remarks - the legal meaning of the preservation of certain buildings
The concept of a preserved building is of great concern to property owners as well as lawyers for a number of reasons.
For those who come into close contact with "listed buildings", the following useful legal information should be highlighted:
Their protection derives from article 24 par. 1, 6 of the Greek Constitution.
The concept of preserved derives from urban planning legislation, while that of monument from the archaeological one.
The protection of the preserved is ipso iure and a priori granted.
The basic legal text that regulates preserved properties is Law No 4858/2021. Also, at the international level, the International Convention of Granada in 1985 was ratified by Law 2039/1992. With the Granada Convention, preserved properties are protected from extinction and adapted to modern uses.
Interventions in preserved properties: general rules
As a general rule, the requirement of prior permission from the competent agency is set for preserved properties, which is found on a case-by-case basis. Interventions of all kinds and, exceptionally, uses in listed buildings are permitted only on the condition that they are in harmony with the character of the building, its architectural structure, its building and construction possibilities and, therefore, aim at proving and preserving its aesthetic and architectural character and they do not entail a significant alteration of its form and do not overlook the preserved building and its surrounding area. The relevant decisions of the administration must be specifically justified (StE 3114/1998), otherwise they are voidable.
The characterization of a building as preserved according to urban planning legislation does not depend on its static adequacy nor is it hindered by any characterization of it as being at risk of collapsing according to the PD of 13-22.4.1929. As is accepted, these two procedures are independent and aim at a different goal, the first to protect in perpetuity elements of the cultural heritage that are considered to be preserved, and the second to protect the public from statically dangerous buildings. The judgment on the first question depends on the type and extent of permitted or mandatory interventions in the building, including its partial or total demolition, the restoration of certain elements or its complete reconstruction. Article 4 par. 2 of Law 1577/1985 defined, moreover, as an essential type of the process of declaring buildings as preserved, the informing of the owners concerned, either by notifying them of the explanatory statement, or by posting it in the relevant municipal or community shop and a relevant publication, edited by the Municipality or the Community, in a local newspaper or the newspaper of the capital of the prefecture (see in this regard State Decree 4221/2005).
The judgment of the Administration must always bear a special justification as to the necessity of any intervention in a protected property. The rationale can be derived from the information in the file. Already according to the GOK of 1985, the YA characterizing a building/monument as preserved and imposing special conditions of protection/building restrictions must be justified. The same applies under the NOK state of 2012.
Finally, it is accepted that the additional construction conditions and restrictions for listed buildings are remedial for the preservation of the building deemed to be protected and do not have a compensatory nature nor can they ever lead to exceeding the general construction and use conditions applicable to the area (StE 2987/ 1998).
I will devote further future articles to specific issues surrounding the law of retainers.