Case law in Latvia: threatened construction in protective zones

  • 2007-05-30
  • By Girts Ruda, attorney-at-law (Latvia), Sorainen Law Offices partner
In February 2007 the Constitutional Court of Latvia delivered judgment in case No. 2006-09-03 concerning compliance of part of the Territorial Plan of Garkalnes parish with the Protective Zone Law (section 37 ((1)4) and the Constitution of Latvia (section 115). The Protective Zone Law prohibits construction within the surface water body protection zone in areas with probability of flooding at least once in a hundred years ("flooding areas") except structures for short-term use, small buildings in rural areas and protection structures especially provided for this purpose or for raising the ground level. The Garkalne Territorial Plan, on the other hand, stipulated that the width of the flooding area around lake Lielais Baltezers is 200 m, but at the same time it allowed construction 50 m from the bank.

The Constitutional Court of Latvia concluded that construction in flooding areas is prohibited, except building of structures for short-term use and small buildings in rural areas. However, it is prohibited to raise the ground level or to build protective structures especially provided for this purpose in order to perform any kind of construction, including structures for short-term use and small buildings in rural areas. Raising the ground level and building protective structures is allowed solely for the purpose of protecting existing buildings from flooding. Based on that interpretation of the Protective Zone Law, the Constitutional Court of Latvia court declared part of the Garkalne Territorial Plan void.

We advise to review their construction plans in light of this judgment.

The Senate of the Supreme of Court of Latvia recently summarized and published recent case law concerning servitudes. The Senate pointed out that in the last few years the amount of these cases is steadily growing.

According to Civil Law, servitudes may be established by law, by court judgment, by contract, or by will. If doubts arise regarding the extent of a servitude, it must always be presumed to be to the least extent. Servitude of right of way (road servitude), should not be established if access to the dominant property may be had another way.
Note that actual use only establishes a servitude right to the owner of the dominant property if it is also established under the procedure determined by Civil Law. Sole actual use does not create a servitude right, but it may provide a reason for establishing a servitude so that it may benefit the dominant property.

The Senate pointed out that a claim to establish a servitude should be denied and an established servitude may be cancelled by a court if it is not absolutely necessary and it is of no benefit to the owner of the dominant property.
If the servient property is mortgaged, the consent of the lender is needed to establish a servitude.

We advise to use these conclusions in further practice concerning establishment of servitudes and the use of servitude rights.

For more legal news please check the latest Baltic Legal Updates by Sorainen Law Offices

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