Under § 32(1) of the Estonian Constitution, everyone’s property is inviolable and equally protected. Although this constitutional norm is generally very well known, it can be seen from petitions sent to the Chancellor that the state or local authorities do not always exhaustively take it into account. Otherwise, it would be impossible to explain a rural municipality’s wish to obtain a part of a person’s plot of land or pressure exerted by the state on a house owner to terminate a tenancy contract because in the future the state wishes to acquire ownership of the building on grounds of public interest. 

Property is also related to building and use of construction works. If procedural rules are unclear or they are not complied with, this amounts to restricting enjoyment of someone`s property. The same effect results from rules which are wrongly applied. 

Nuisance arising from the surrounding environment, such as noise from construction works, can also be interpreted as restriction on property. In this respect as well, rules must be formulated in a manner similarly understood by all parties. If rules are conflicting or they are not applied, this leads to confusion interfering with enjoyment of property. 

Enjoyment of property

Pressure to surrender part of an immovable

On several occasions, the Chancellor has been contacted with a concern that a local authority has set a precondition for performing a measure or issuing an administrative act, requiring that land should be surrendered free of charge in the public interest. For example, surrender of land free of charge for building a public road was required after a person had expressed a wish to divide their immovable and contacted the rural municipality with a view to carrying out land consolidation procedures to that end. This case was resolved as a result of the Chancellor’s intervention. 

In another case, a rural municipality set a requirement as a precondition for an engineering design that a larger part of the land unit should be given to the rural municipality. The rural municipality justified this by the need to ensure that forest growing on that plot would be preserved and remain in public use.

Compensating the cost of commissioning a valuation report of an immovable

Several petitions revealed that no compensation of the cost of valuing an immovable had been laid down within proceedings for acquisition of an immovable in the public interest. So the question arose as to the constitutionality of § 17 (valid to 1 January 2023) of the Acquisition of Immovables in the Public Interest Act, which only laid down compensation for procedural costs. 

The Chancellor concluded that it was unconstitutional that the cost of commissioning a valuation report was not compensated to the owner of an immovable even though, in the event of a price dispute, the law requires them to commission a comparative valuation report. 

Under § 32 of the Constitution, if the state expropriates an owner’s land, forest or house in the public interest, then fair and immediate compensation must be offered. This means that the owner must be paid a sum corresponding to the market price of the immovable or an equivalent plot of land must be offered in exchange. Expropriation may not cause financial loss to the owner. Since the earlier version of the Acquisition of Immovables in the Public Interest Act did not enable compensating the cost of commissioning a comparative valuation report, this cost was left to be borne by the owner of the expropriated immovable. 

The Chancellor made a proposal to the Riigikogu to bring the Act into conformity with the Constitution. Based on the Chancellor’s proposal, the Riigikogu amended the Act so that now a person whose immovable the authorities wish to acquire in the public interest may claim compensation of procedural costs related to transfer of the immovable as well as the cost of preparing a comparative valuation report. 

The Chancellor’s conclusion was also affirmed by the Supreme Court (judgment of 6 June 2023 No 5-22-15). The court affirmed that § 17 of the Acquisition of Immovables in the Public Interest Act in the wording in force before 2 January 2023 contravened the Constitution insofar as it failed to lay down compensation of costs incurred in commissioning a comparative valuation report of an immovable.

Activities of the Land Board in acquiring immovables

The Chancellor was asked to check whether the Land Board was acting lawfully when requiring tenants to terminate their tenancy relationship within proceedings for acquisition of immovables in the public interest. Specifically, the procedural materials revealed that the Land Board required tenants of an immovable to be acquired to vacate the rented space by a certain date. This requirement was also reaffirmed to owners of an immovable and tenants in subsequent correspondence.

In her memorandum, the Chancellor explained that the Land Board has no legal basis to require tenants to terminate their contract and vacate the property before an immovable is actually acquired in the public interest. Fundamental rights and freedoms and other subjective rights may only be restricted by law (§ 3 Constitution, § 3(1) Administrative Procedure Act). Under the Acquisition of Immovables in the Public Interest Act and the Law of Obligations Act, the acquirer of an immovable gains the right to terminate a tenancy contract under the provisions of the Law of Obligations Act after they have acquired the immovable. 

Consequently, it is contrary to good administrative practice if the Land Board requires tenants to terminate their tenancy contract while proceedings for acquisition of an immovable in the public interest are still ongoing. A tenant may choose whether they wish to terminate their tenancy contract during or after the proceedings. The acquirer of the immovable cannot oblige them to do so but may only offer an option to terminate the contract earlier. In doing so, tenants must be explained the possibilities concerning acquisition of the immovable and obtaining compensation.

The Land Board promised the Chancellor that they would act in compliance with the law in the future. 

Expansion of Nursipalu training area

Russian aggression against Ukraine has brought about the need to expand the military training area at Nursipalu in Võru County. The Chancellor explained that under § 32(1) of the Constitution the state may acquire (including by expropriation) land suitable as a training area for the Defence Forces for fair and immediate compensation. 

When expanding a training area and acquiring land, the law must be complied with ‒ even under the conditions of security risk and exceptional circumstances (§§ 3, 10 and 13 Constitution). If the state deprives someone of their home in the public interest then fair ‒ thus also constitutional ‒ compensation must be in an amount that enables acquiring an equivalent dwelling. 

The state failed to make use of statutory options for expanding Nursipalu training area. For example, the state failed to initiate a national designated spatial plan or planning proceedings. Planning proceedings enable ensuring greater legal clarity and effectively involve persons interested or concerned. Without proper planning proceedings the reasons, necessity and legal basis for expanding the training area remained unclear for many people. 

In order to enable expedited expansion of the training area, the Riigikogu amended the Weapons Act and laid down an exceptional possibility that the Government, on a proposal by the Minister of Defence and on the basis of a relevant risk assessment, may decide on establishing or expanding a training area of the Defence Forces or the Defence League without spatial planning proceedings. In that case, the process takes place in open proceedings under the Administrative Procedure Act where persons may submit proposals and objections. 

The Chancellor concluded that the provisions inserted in the Weapons Act did not contravene the Constitution. Although the Planning Act does not apply to exceptional establishment or expansion of a training area, persons are ensured a possibility to participate in proceedings for issuing a legal act for establishing or expanding the training area and to submit their opinions in open proceedings. Persons may also contest the order for establishing or expanding a training area in an administrative court.

Property rights procedure

Building notice proceedings

A building permit is not always required for construction. In simpler cases, a building notice is sufficient, which should be quick and as little burdensome as possible. At the same time, it should enable a local authority to assess whether the planned construction works are compatible with the public interest as well as the interests of the persons concerned. In most cases, proceedings for a building notice can be carried out as a silent procedure: unless the local authority comes forward with additional requirements within a set time limit, a building notice is considered to have been submitted and construction may begin. A local authority must present the requirements in an administrative act as laid down by law. 

During the reporting year, the Chancellor had to draw the attention of Tallinn City Government to the procedure for handling building notices. All the requirements imposed by a local authority must be lawful, justified and set within the statutorily prescribed time limit. The duty of justification helps to ensure that the requirement is lawful and understandable and that compliance with it does not cause resentment. Justification is particularly important if the requirement imposed comes down to a subjective assessment, such as the architectural appropriateness of construction works or extension to a building. 

Approval of the location of a borehole

Under § 124 of the Building Code, before constructing a drilled well or borehole the approval of the local authority must be obtained regarding the location of the drilled well or borehole, and only then can an application for a building permit be submitted. Under the law, these proceedings should be simple and swift. However, Kiili rural municipality organised approval proceedings for a drilled well and borehole more stringently than laid down by law. The municipality required that investigation should be carried out before approving the location. Although the requirement for investigation may be justified in constructing a drilled well or borehole, this requirement must be imposed at the right stage of proceedings. Constructing a drilled well and borehole presumes the existence of a building permit and, in order to apply for the permit, all the necessary investigations must be carried out in any case. 

Construction is a process and advancing a certain stage may cause inconvenience or unjustified expense. For example, this may be expressed in the need to carry out an investigation sooner than planned. The requirement of investigation prior to proceedings for issuing a building permit, as well as lack of approval for the location, may mean that no application for a building permit can be submitted. 

The Chancellor had to explain repeatedly to the local authority the essence of proceedings for approval of a borehole and that prior to an application for a building permit the local authority does not actually need to resolve issues to be subsequently resolved by a building permit. This kind of exceptional procedure might not be justified or necessary and amending the law should be considered. However, until then the law must be complied with as is. 

State fee for legalisation of construction works 

Under § 3316 of the State Fees Act, a state fee of 500 euros is payable if construction works illegally built prior to entry into force of the Building Code (i.e. before 1 July 2015) is sought to be entered into the register of construction works (i.e. to be legalised). So far, this rate of state fee has also been applied in other cases: for example, if illegal remodelling has been carried out in lawfully built construction works. 

This kind of implementing practice is not correct. This is an exceptional rate of state fee whose conditions of application may not be interpreted expansively. 

This does not mean that no state fee should be charged for retroactive legalisation of illegal remodelling. If remodelling works are of the kind for which the current law also requires a building and occupancy permit then the amount of state fee required in applying for those permits should be paid. The Chancellor drew the attention of Tallinn city to the fact that the correct rate of state fee must be applied. 

In many older houses, remodelling has been carried out over time and retroactive proof of its lawfulness is exceptionally burdensome both for the current owner of the building as well as for the official resolving the issue. At the same time, no situation may be allowed to develop where it is easier and cheaper to circumvent the legal requirements rather than comply with them. 

A precept in resolving disputes in private law

The Chancellor explained to Luunja Rural Municipality Government that in resolving a private law dispute between the rural municipality and a private person the municipality cannot invoke the powers of a public authority and issue a precept to a private person. Disputes in private law must be resolved in line with private law rules and principles. 

In this case, the municipality issued a precept to demolish a fence with the justification that the fence had been built over the border of the immovable and was located on municipal land. The owner would have incurred considerable expense by demolishing the robustly built fence. Moreover, the issue was only about a few dozen centimetres and the plot border data may have also been imprecise.

Noise target value and limit value

Noise significantly affects our living environment, well-being and health. For this reason, some legislation lays down normative levels of noise based on which the quality of the living environment can be assessed. 

The limit value of noise is a normative level which, if exceeded, results in noise reduction measures having to be taken. The target value of noise, on the other hand, is stricter than the limit value and it applies in cases where emergence or deterioration of the noise problem can be prevented, i.e. primarily in spatial planning proceedings. 

Unfortunately, legislation does not clearly and unequivocally set out the conditions for applying the target value of noise, and regulation by the Minister of the Environment includes a provision which allows disapplying the law. This situation has caused disputes. Applying the target value of noise determines, for example, whether any buildings can be erected at all in a certain location. This, however, is a vital issue in terms of the right to property. One may presume that relying on the target value of noise would improve the living environment. However, this is not always so. Erecting a new building may sometimes actually reduce the spread of noise. 

The Chancellor drew the attention of the Health Board to the fact that the correct normative level of noise must be applied. Since resolving the case is prevented by lack of legal clarity of the norm, the Chancellor contacted the Riigikogu and the Minister of the Environment with a request to tidy up the legislation.