Our Real Estate law team has been representing a client-builder in relations with state authorities and private persons regarding the procedures for the completion of the construction of a multi-apartment residential building at Jasinskio st. 12, Vilnius, since November 2017.
Following the actual completion of the construction of the building in question in March 2018, a deed of completion of the construction was issued, which was disputed by UAB Mano Turtas, the owner of a neighboring land plot, demanding to repeal the said deed and its registration and to oblige the builder to rebuild the existing building in accordance with the requirements of the said company.
The statement of claim of UAB Mano Turtas was accepted for hearing, therefore our team prepared a defense strategy and all procedural documents for the court, as well as, after the plaintiff involved the owners of the apartments in the building as defendants, Motieka & Audzevičius represented some of these persons at the client’s request.
Following the dismissal of the plaintiff’s claims by the court of the first instance on 28 June 2019, a response to the appeal was prepared.
By ruling of 3 June 2020, the Vilnius Regional Court dismissed the plaintiff’s appeal, acknowledging the validity of the client’s arguments.
Finally, after an appeal on the said ruling was filed in cassation, our team prepared a response to the cassation appeal.
The cassation case was heard by the Supreme Court of Lithuania on the cassation appeal of the plaintiff and the appellant regarding the minimum distance from the apartment building to the adjacent plot boundary, qualification of the sustaining wall as an engineering structure, construction in deviation (without deviating) from the requirements of the construction-permitting document and the territorial planning documents, as well as on the interpretation and application of legal norms regulating proving and evaluation of evidence.
In the present case, our lawyers represented the defendant, a builder of 71 apartments in a residential building with commercial premises, and some of the apartment owners, whom the plaintiff sought to oblige to revise the design documentation of the building and to rebuild the allegedly improperly constructed parts of that building. The State Territorial Planning and Construction Inspectorate was among the defendants in this case.
In this case, the plaintiff has formulated his claims to the court, stating that:
- the sustaining wall of the disputed building is an integral part of it (built on the boundary of the plaintiff’s and client’s plots) and the standard distance between the building and the plot boundary must be calculated from it;
- the building has been built without complying with the height requirements set in the detailed plan;
- the correction of the detailed plan made by the order of the director of the Vilnius City Municipality Administration (adjusting the structures‘ construction zones and the locations of the planned buildings on the plot) cannot be applied.
The cassation court, rejecting the plaintiff’s arguments by its ruling of 13 January 2021, noted that the removal of designed residential buildings from the plot boundary at a distance of 3 meters is mandatory, as in the case of public buildings, and the distances of newly designed buildings must be determined from their superstructures. The court ruled that a sustaining wall that does not support the loads of a building and is not an essential part of structures thereof cannot be recognized as a part of a building but as a separate engineering structure. It was also pointed out that a private legal entity cannot defend the public interest and must indicate to the court what specific ownership rights have been violated by the construction in question. Finally, the evaluation of the expert findings submitted by a participant to the proceedings (without appointing a forensic examination in the case) was also spoken about in the context of the evidence gathered in the general case.
In such a manner, after the courts of all instances had dismissed the plaintiff‘s claims, a dispute pending from 2018 has been finally resolved in favour of the client.