Information Note on the Court’s case-law 54
June 2003
Allard v. Sweden - 35179/97
Judgment 24.6.2003 [Section IV]
Article 1 of Protocol No. 1
Article 1 para. 1 of Protocol No. 1
Deprivation of property
Demolition of house built on jointly owned land without the consent of the joint owners, while proceedings concerning division of ownership pending: violation
Facts: The applicant and her mother and siblings owned land jointly with other members of their family. In 1988 the applicant obtained a building permit for a house which was duly erected on the land. Following the death of the applicant’s mother in 1989, the house was assigned to the applicant in 1991. In the meantime, most of the other joint owners had instituted proceedings against the applicant, seeking to have the house removed on the ground that it had been built without their consent. The District Court decided in May 1990 that the applicant had to remove the house and its decision was confirmed by the Court of Appeal in 1994. The applicant appealed to the Supreme Court and requested that no further action be taken pending the outcome of proceedings which she had instituted in 1990 to have the joint ownership dissolved and individual plots assigned to the family members. On 4 March 1996 the Supreme Court rejected the request to stay the proceedings and refused leave to appeal against the Court of Appeal’s judgment. Meanwhile, the Real Estate Formation Authority had allowed the creation of separate plots but, referring to the Court of Appeal’s judgment, had rejected the applicant’s claim for the creation of a plot round her house. The applicant appealed to the Real Estate Court, which on 14 March 1996 obtained from the Central Office of the National Land Survey an opinion recommending that the applicant should be assigned a separate plot. However, several family members had instituted enforcement proceedings and in May 1996 the District Court refused the applicant’s request for a postponement of enforcement. The Enforcement Office decided that the house would be demolished by a construction firm on 3 June 1996. The applicant appealed, requesting an immediate stay. The Court of Appeal ordered her to complete her appeal by 5 June. However, it in fact examined the case on 3 June and refused leave to appeal against the decision of the District Court. The Supreme Court refused leave to appeal and the house was duly demolished by a construction firm. In November 1996 the Real Estate Court decided that the property should be divided into plots and assigned the applicant the plot on which the house had stood. The Court of Appeal upheld this decision and the Supreme Court refused leave to appeal. The applicant was subsequently granted permission to rebuild the house.
Law: Article 1 of Protocol No. 1 – The demolition of the house deprived the applicant of her possession, namely the house, which had been assigned to her in 1991. A deprivation of property effected in pursuit of legitimate social, economic or other policies may be “in the public interest”, even if the community at large has no direct benefit from it and, since a requirement that the disposal of jointly owned property must have the consent of all joint owners lies at the heart of the notion of joint ownership, the demolition of a building erected without the necessary consent could reasonably be said to further the legitimate “public interest” of maintaining a functioning system of joint ownership. In the present case, the consent of the other owners had not been obtained and the applicant could not reasonably have been unaware that she risked certain legal consequences by erecting the house without their consent. However, the erection of the house was not illegal per se, since tacit approval would have sufficed; moreover, a building permit had been issued for the house and a permit for reconstruction was granted later. It remained to be examined whether a fair balance had been struck. In that respect, the Central Office had recommended shortly after the Supreme Court refused leave to appeal in the removal proceedings that a plot around the house should be assigned to the applicant. Moreover, the Court of Appeal had examined her appeal against the refusal to stay enforcement two days before expiry of the time-limit it had set her for completing her appeal and the Enforcement Office had proceeded with the demolition before the Court of Appeal delivered its decision. In addition, when the Supreme Court refused leave to appeal and rejected the request to stay the proceedings in March 1996, the proceedings concerning division of the property were still pending and it would have been reasonable to await their outcome, since the question of the demolition of the house was clearly linked with that issue. The interest of the other owners could not be considered to be particularly great, since the house was used exclusively by the applicant and immediate family and could not be seen from the plots used by the other joint owners. Although the applicant’s difficulties were largely the result of a family conflict to which she appeared to have contributed, the measures taken failed to strike a fair balance and she had therefore had to bear an individual and excessive burden.
Conclusion: violation (unanimously).
Article 8 – The Court considered that it was not necessary to examine the applicant’s allegation under this provision.
Conclusion: not necessary to examine (unanimously).
Article 41 – The Court awarded the applicant 100,000 euros in respect of pecuniary damage. It considered that the finding of a violation in itself constituted sufficient just satisfaction in respect of non-pecuniary damage. It also made an award in respect of costs and expenses.
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This summary by the Registry does not bind the Court.
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