Building Enforcement and Compliance in Switzerland
Building enforcement (police des constructions) designates the totality of measures that administrative authorities may take to control compliance with construction legislation and remedy violations. In Switzerland, this area falls primarily under cantonal law, each canton having its own construction legislation (BCA in Geneva, LATC in Vaud). PBM Avocats represents property owners and neighbours in Geneva and Lausanne in these proceedings.
Unlawful Construction: Definition and Causes
A construction is unlawful when it has been carried out without authorisation, in violation of the authorisation granted, or when it is incompatible with the applicable legal standards. The main causes:
- Absence of authorisation: construction without prior filing of a permit application
- Exceeding the authorisation: construction that exceeds the authorised dimensions or characteristics
- Unauthorised change of use: use of premises for purposes other than those authorised
- Non-compliance with conditions and charges: non-execution of measures imposed by the permit
- Post-authorisation violation: modifications made after obtaining the permit without a new authorisation
Available Building Enforcement Measures
| Measure | Description | Conditions |
|---|---|---|
| Stop-work order | Immediate interruption of the unlawful construction site | Urgency; provisional measure |
| Regularisation | Obtaining retrospective authorisation if the construction can be legalised | Construction conformable to law |
| Compliance works | Modification of the construction to make it compliant | Partial violation; modifications possible |
| Demolition / restoration | Destruction of the unlawful construction and restoration of the previous state | Proportionate; serious and non-regularisable violation |
| Administrative fine | Financial penalty for violation of construction rules | According to cantonal law |
The Principle of Proportionality in Enforcement Measures
The principle of proportionality (art. 5 para. 2 FC) is decisive in the choice of building enforcement measure. The authority must opt for the least severe measure allowing the legitimate objective (restoration of legality) to be achieved. Thus:
- If the construction can be regularised retrospectively, the authorisation may be granted retroactively without a destructive measure
- If minor modifications are sufficient to make the construction compliant, these will be preferred to demolition
- Total demolition is only ordered if the illegality is serious, regularisation is impossible, and the public and private interests at stake justify it
Prescription and Good Faith in Building Enforcement
Two important defences against building enforcement measures:
- Prescription: certain cantons provide a prescription period for restoration measures (often 30 years). The Federal Supreme Court is restrictive on this point and tends to refuse prescription if the unlawful state persists. However, prolonged tolerance by the authority may limit its right of intervention
- Good faith of the builder: if the builder acted in good faith by relying on erroneous indications from the authority, the restoration measure may be limited or excluded under the principle of protection of legitimate expectation (art. 9 FC)
Specificities in Geneva and Vaud
In Geneva, the Department of Territory (DT) is competent for building enforcement measures. Orders to restore the previous state are subject to appeal before the ACFI (TAPI) then the Administrative Chamber. In Vaud, the municipalities and the canton share building enforcement competences under the LATC. The appeal goes before the CDAP of the Cantonal Court.
What is building enforcement in Swiss law?
Building enforcement (police des constructions) is the totality of the powers available to the administrative authority to control compliance with legal construction standards and, in the event of a violation, to order measures for bringing the situation into compliance. It may compel the owner to demolish an unlawful construction, to modify it, or to obtain retroactive authorisation if this is possible.
Can the authority always order the demolition of an unlawful construction?
No, not in all cases. The principle of proportionality applies: if the violation is minor and can be regularised, demolition will not be ordered. If the construction can be brought into compliance with minor modifications, this will be preferred to demolition. Finally, if a very long period has elapsed since the unlawful construction, the prescription of the enforcement power may be invoked, although the courts admit this restrictively.
Is there a prescription period for violations of construction rules?
The question is controversial. The Federal Supreme Court tends to refuse absolute prescription for unlawful constructions, on the grounds that the unlawful state persists. However, legal certainty and good faith may limit the authority's power of intervention, notably if the illegality results from prolonged tolerance or an error by the authority itself. Case law is decided on a case-by-case basis.
Can a neighbour ask the authority to intervene against an unlawful construction?
Yes. A neighbour directly affected by an unlawful construction may address a request to the competent authority to take building enforcement measures. If the authority refuses to act, the neighbour may contest this refusal by administrative appeal, provided they have a worthy interest in the authority's intervention (infringement of their neighbourhood rights, violation of a protective standard).
What does a property owner risk by building without authorisation?
The owner who builds without authorisation is exposed to: (1) the order to demolish or bring into compliance with the obligation to restore the previous state; (2) administrative fines under cantonal law; (3) criminal proceedings in certain cantons for contravention of construction laws; (4) difficulties in selling the asset (the defect must be disclosed to the buyer). It is preferable to regularise the situation as soon as possible.