In case of infringement of the significant right of a co-owner of a plot to extend the building by another co-owner, the injured party is not left unprotected but can seek judicial protection.
Specifically, among the rights of co-owners of a plot, unless otherwise agreed, is the right to extend any existing building upwards, downwards, or sideways. This right belongs jointly to the co-owners according to their shares, and any buildings constructed in the future will also belong jointly to the co-owners in proportion to their shares.
This right is, of course, measurable in monetary terms, which implies the possibility to claim compensation if it is violated by any co-owner of the plot. Specifically, if a co-owner covers, in accordance with applicable town planning regulations, the building factor corresponding to their property in a way that exceeds their legal or contractual right, thereby depriving the other co-owners of the right to extend the building, the affected co-owner has the following options:
- A) To file a lawsuit demanding demolition to the extent that the building factor has been exceeded; or
- B) To file a lawsuit demanding compensation equal to the value of the covered surface area that was lost, in cases where demolition is technically impossible to the extent of the excess.
If the second option is chosen, compensation will be calculated under Articles 297 and 298 of the Civil Code and will consist of the value of the surface area that caused a loss in the property of the injured co-owner, not the value of the undivided share of the land, which, despite the excess building height by the other co-owner, still belongs to them.
According to established case law (Supreme Court decisions 232/2022, 151/2017, 1692/2013, etc.), the damage consists of the value of the apartment, floor, or part thereof lost by the co-owner of the plot, from which must be deducted the value of materials and all necessary construction expenses, as well as the value of the land corresponding to that surface area. This is to prevent unjust enrichment of the injured co-owner, since otherwise, their loss would be calculated based on the value of a fully completed building with the respective share of the land, while they have neither lost their share of the land nor paid for the construction expenses of the building.
