When Can an Authority Order a Building Demolished? The Court Tightens the Burden of Proof

The building authority orders you to demolish a wall your family built fifty years ago. The reason? You lack a permit under a 2006 law — but that law did not even exist when the wall was built. The Supreme Administrative Court dealt with exactly such a case, and its verdict has far-reaching implications for anyone in a similar situation.

Mr and Mrs S. owned a wall of fireclay bricks on the boundary of their plot, 1.3 metres high and 3.2 metres long, including a gate. It was built before 1975, while the Building Act of 1958 was still in force. Their neighbours, the T. family, disagreed with the wall's existence and claimed it partly encroached on their land. The building authority in Boskovice therefore opened proceedings for the removal of the structure.

The authority held that the wall had been built without the necessary permit and, since the owners could not legalise it retrospectively, ordered its removal. The Regional Authority of the South Moravian Region upheld that decision. Both authorities relied on the Building Act of 2006, specifically its provisions on planning decisions. Mr and Mrs S. challenged this before the Regional Court in Brno, which dismissed their action.

The authorities' key error: applying the wrong law

In its decision of 2 June 2026, the Supreme Administrative Court exposed a fundamental error. The authorities had assessed the need for a permit under a law that was not in force at all when the wall was built. Whether a structure required a permit must be assessed under the law in force at the time of its construction, not at the time of the administrative proceedings. The court described this as a substantive-law question that cannot be circumvented.

The court recalled that, in removal proceedings, the burden of proof lies on the building authority, not the owner. The authority does not discharge that duty merely by inviting the owner to produce a permit. It must itself actively establish whether the structure needed any permit at all, according to the law in force when it was built. Here the authority should have examined the Building Act of 1958, or the Act of 1976, rather than automatically applying the current rules.

Another problem was the internally contradictory reasoning. On the one hand the authority claimed the drawings showed the wall encroaching on the neighbouring plot, so no geodetic survey was needed; on the other it stated that the structure's position relative to the plots was not relevant to removal proceedings. The court found such an approach unreviewable.

Practical implications for owners of older structures

The decision matters greatly for owners of properties with historic structures. If an authority opens removal proceedings, it must first clearly determine under which law it is assessing the permit regime. For structures built decades ago, this means a thorough examination of the rules in force in the relevant period; a mere reference to the current Building Act is not enough.

The court also stressed the Constitutional Court's case-law on proportionality. If, under the current rules, a structure falls within the so-called free regime and needs no permit, ordering its removal may be a disproportionate interference with the right of ownership. Since 2018, fencing up to 2 metres high, where the statutory conditions are met, generally requires neither a planning decision nor a building permit. The authorities must address this circumstance.

Mr and Mrs S. also argued a breach of the principle of equality. In parallel proceedings concerning their neighbours' pergola, the building authority had decided the opposite way, although the factual question of a structure encroaching on another's land was analogous. The court held that the defendant had not adequately dealt with this objection.

The outcome is clear. The Supreme Administrative Court quashed both the regional court's judgment and the regional authority's decision and returned the matter for fresh consideration. The authority must now assess under which law the wall's permit regime should be evaluated and clearly interpret the specific provision from which it infers the need for a permit. If it considers the structure's impact on the neighbours' rights, it must also properly establish the facts as to its exact position.

The lesson for practice is clear. Owners of older structures should be aware that an authority cannot automatically demand documents under current rules. Conversely, if faced with such a demand, they are entitled to insist that the authority explain specifically why their structure required a permit under the law in force when it was built. The burden of proof lies on the authority, not the owner.

The court awarded Mr and Mrs S. costs of CZK 46,674. The case shows that a consistent defence against a formalistic approach by the authorities can succeed — but it requires knowledge of the relevant case-law and patience in the court proceedings.

Source: Supreme Administrative Court, 8 As 6/2026-47