A farmhouse that has been abandoned for decades: the roof is caved in, the walls are crumbling, but the foundations are still visible. The ruins of a factory in the centre of the town: some of the structures have collapsed, but some of the walls still remain. Do such buildings still exist legally or are they considered extinct? These questions are important not only for the owners, but also for the courts in disputes over property rights. The situation is complicated by the fact that there is no concept of extinction in the law.
According to Eimantas Čepas, attorney at law at AVOCAD, the right to property is one of the fundamental rights enshrined in the Constitution. "The inviolability and protection of property means that the owner has the right to perform any act on his property except those prohibited by law, to use his property and to determine its fate in any way that does not infringe the rights and freedoms of others," he reminds the lawyer. As a form of property, it is compulsory to register any building, whether created or existing, in the real estate register. The question is, can a structure disappear?
"According to the provisions of the legislation governing the registration of objects, rights in rem and legal facts, the public register must record, among other things, the fact of the extinction of a former object. Thus, it is obvious that the legal extinction of a building can and must be recorded in the public register," says Čepas. However, according to the lawyer, a strange situation arises, as there is no concept of extinction of an object in the legislation. The Supreme Court of Lithuania has also noted this in its practice.
The concept of extinction of an object is, in principle, only established by the rule of case-law that it is only after the fact of total collapse, destruction or demolition of a structure has been established, i.e., that there are no structures left or that only the load-bearing structures below the surface of the ground (the subterranean structure, i.e. in the case of a structure which is underground, where all or most of its load-bearing structures have disappeared), unless the demolition of the structure or parts thereof is carried out in the course of the reconstruction or overhaul of the structure, it shall be presumed to have disappeared and therefore the structure and the rights in rem in respect of the structure shall be registered.
"Thus, once the total collapse, destruction or demolition of a structure has been established, it is deemed to be extinct and must be registered, and vice versa - if there is no reason to establish the total collapse, destruction or demolition of a structure, there is no reason to deem it to be extinct," the lawyer notes.
This regulation is the subject of disputes in the courts
In practice, this legal framework often leads to disputes as to how many and which of the building's structures must be destroyed, destroyed or missing in order for the building to be considered extinct, and conversely, to prove that the building can still legally exist.
Establishing the existence of a structure can be particularly important for the restoration of old buildings. The case-law also makes it clear that where the owner does not wish to demolish the building, but the building has deteriorated and its load-bearing structures are no longer there, the owner has the right to restore the building in accordance with the procedure laid down by law. The right to restore a building may not be restricted, provided that it is exercised in accordance with the procedure laid down by law, i.e. a person's constitutional right to own and enjoy his or her property must be guaranteed and not restricted.
AVOCAD's lawyer argues that there are cases where the courts have taken the fact that only parts of a building's foundations, and not the entire structure, have survived as evidence that the load-bearing structures have not survived and that the building should be considered to have collapsed completely.The Court stated that, if it is established that none of the load-bearing structures remain and that the remaining parts of the foundation are not capable of fulfilling the purpose of a load-bearing structure, the dwelling does not meet the definition of a structure as set out in the law and should therefore be considered as a remnant of a structure and not as a building.Accordingly, it must be declared extinct.
Thus, according to the lawyer, the condition for the disappearance of the structure in the present case was linked to the question whether the remains of the structure could actually be used for their intended purpose. In the other cases, the condition of extinction has been recognised essentially on the basis of a purely visual and subjective assessment of the situation, i.e. the court has held that the structure is extinct because only its individual fragments and remnants are visible.
However, recent case-law provides a different interpretation of the situation in question: when deciding whether a building has disappeared and whether its structures have survived, it is irrelevant whether the surviving structures comply with the requirements of strength, stability or integrity for the structures of a new building.In simple terms, it has been clarified that, for the purposes of declaring a structure extinct or not, it is not relevant whether the surviving structures of the structure are still capable of being used for their main purpose, but rather the existence of the surviving structures, without assessing whether they comply with the requirements for the structures of a new building, and not the existence of their fragments or remains. Furthermore, the Court explained that the fact that, for example, the foundation of a building is damaged and broken in pieces does not constitute a ground for finding that only fragments or remains of the foundation of the building have survived.
According to lawyer Eimantas Čeps, since the legislation does not contain clear and specific definitions of what can be considered as an extinct structure, once the dispute has moved to the courts, how much and what kind of remnants of a structure can be sufficient to declare that there are no grounds for establishing that the structure has been completely collapsed, destroyed, or demolished, and thus should not be considered extinct, or, on the contrary, to declare the structure to have disappeared, is a matter that remains subject to evidence in the case, and the final assessment may vary from case to case.
