Legal Aspects of the Main Stages in the Construction and Commissioning of a Single Family Home
This article is intended to present the main legal aspects of the individual stages which any investor who has decided to build his or her own single family home should complete until the commissioning of the latter. It outlines the main steps to be undertaken but it must be noted that each step has its own specific features and details that need separate in-depth legal analysis of each individual case.
First and foremost, for the purpose of building a single family home it is necessary to have either own land (it is called a “parcel”) or a building permit to build on another person’s land. Before the property is acquired, apart from the standard verification of the ownership rights and the possible encumbrances on the property which are not the subject-matter of this article, it is necessary to check also the designation of the use of the property. The land use designation of each property is set out in its effective detailed zoning plan (DZP). In this particular case, the property should be designated for residential building within the meaning of Article 4(7)(1) of Ordinance No. 7 of 22 December 2003 on the planning rules and standards by types of territories and planning zones because the land use designation of specifies the permissible activities and the type of permissible building up of the parcel. The DZP defines the zoning front street lines which indicate where the property is separated from the adjacent street(s) and the interior lines that are either sidelines or lines to the back of the property. All zoning lines are relevant to the next step of designing the future house with its position and setbacks from adjacent properties. It is important also to check whether the zoning of the property is implemented and the best option is to have the zoning lines coincide with the boundaries of the property. Most of these features of the property can be found in its sketch-map, unless the land property is located outside the boundaries of the relevant urban territory. In this case, the first thing to do is to prepare a DZP for the zoning and building up of the property. It is very important to check in advance whether the building parameters would satisfy the owner’s requirements for the future design and construction works. In accordance with Articles 18 and 21 et seq. of the Territorial Planning Act (TPA), these parameters cover not only the land use designation but also the manner of building up (detached, semi-detached or block building), the character of the building (depending on the permitted number of floors and elevation), and the building restriction lines (beyond which construction works are not permitted). The following building indicators are also relevant: maximum building density (the ratio of the sum total of the built-up areas of the main and appurtenant buildings to the total area of the property expressed in percentage), the maximum intensity of building (the ratio of the total floor built-up area to the total area of the property expressed in absolute numbers), the percentage of the minimum free (un-built) yard area and the minimum required green space. In view of preventing possible issues which might occur in the course of the design, construction and commissioning of the building, it would be appropriate to check whether the property is located within a territory with special protection status (e.g. architectural or environmental conservation areas) because there might exist special rules and standards which are added to the requirements of the general and detailed zoning plans.
After the acquisition of the property, the investor has to submit an application to the relevant municipality for the issuance of a design visa in accordance with Article 140 of the TPA. The design visa is a copy of (or a transcript from) the effective detailed zoning plan covering the land property and the adjacent land properties, which indicates the existing buildings and structures on the property and the adjacent ones, the building lines and the permitted elevations, the density and intensity of building, and any other requirements, if any, as well as the deviations which are allowed under Article 36 of the TPA. Where the cadastral map entered into force after the entry into force of the detailed zoning plan, the visa is affixed to a combined sketch-map from the cadastral map and the detailed zoning plan.
Upon the acquisition of the property, the parcel owner who intends to build on the lot becomes an investor in the construction process within the meaning of Article 161(1) of the TPA. From that point of time onwards, all contracts relating to the implementation and commissioning of the building should be signed by the owner precisely in his or her capacity of investor. It should be noted that pursuant to Article 160 TPA the relationships between the investor and the other participants in the building process (the builder, the designer, the consultant, the natural person exercising technical supervision of the structural section and others) have to be laid down in written contracts. The investor is obligated to obtain the requisite documents and to make them available to the designer and to sign a design and author’s supervision contract with the designer. Another obligation of the investor is to sign a construction contract with a builder registered with the Bulgarian Construction Chamber. This is to be certified with a document which proves that the contractor is entered into the special registry of builders. The TPA was amended in the beginning of 2019 to expand the scope of building supervision with the inclusion of construction works in Category 5, which meant mandatory conclusion of a building supervision contract.
In accordance with Article 139 TPA, the designs for investment projects may be drawn up by the designer on the basis of the terms of reference given by the investor in the following phases: a concept design, a technical design and a working design (working sketches and details). Depending on the specific features of the project, the investor is required to contract those parts of the investment project, which make it possible to assess its compliance with the requirements set out in Article 169(1) and (3) of the TPA and consequently to complete the construction works. The house design process may consist of a single phase which is the technical design. Ordinance No. 4 of 21 May 2001 on the scope and content of investment projects specifies the minimum content of the design which is required for a building permit to be issued. It includes the following sections: architecture, structures, water and sanitation, fire safety, land survey, energy efficiency and a report on its assessment, as well as bills of quantities. The additional sections depend on the needs and specific requirement of the investor, such as HVAC (heating, ventilation and air-conditioning), working details in the architectural section, a cesspool design, a building waste management plan (for houses with a built-up area above 700 square meters), planning and development of a park, a fence, a swimming pool, etc.
A design is considered to have been completed after it receives a positive compliance assessment which is given either through its adoption by an expert board of the administration which is to approve the design or on the basis of a comprehensive report drawn up by a registered consulting company which is not related to the designer. The investment project is subject to coordination and approval by the municipal administration through its chief architect. Then a building permit is issued.
The next step is to sign a construction contract which has to contain at least the following clauses: completion deadline, payment calculation method based on the bills of quantities, and quality assurance. It is recommendable that payments be staggered in relation to the completion of certain stages of the construction process. As to the quality of works, the construction supervision plays an important role and it is not advisable for the supervisor to be related to any other participant in the construction process. The specific documents to be drawn up in the construction process are set out in detail in Ordinance No. 3 of 31 July 2003 on the certificates and statements on the completion of construction works. The Ordinance contains sample forms of these documents. With regard to construction works of Category 5 which includes residential housing construction, the mandatory statements to be drawn up in the course of construction works are Forms Nos. 2 (2а), 3, 4, 7, 12, 14 and 15. All of them have to be submitted for the purpose of commissioning the building. The other documents that need to be drawn up or collected in the course of construction works include the concrete pumping logbook, the construction works order book, declarations on the compliance of all inputs, installation testing statements, and others.
After construction works are completed, in accordance with Article 176 TPA, the investor, the designer, the builder and the construction supervisor draw up a statement of facts to certify that construction works have been completed in accordance with the approved designs of the investment project, the verified executive documentation, the building requirements set out in Article 169(1) and (3) TPA and the terms and conditions of the contract. This act constitutes also the formal handover of the building from the builder to the investor.
The final step is specified in Article 177 TPA, in accordance with which after the construction works are completed and the acceptance trials, if needed, are performed, the investor has to serve an application to the authority which issued the building permit for the commissioning of the building. The supporting documents to be attached to the application are the final report of the building supervisor, the contracts with the operational companies for the connection to the technical infrastructure networks, a technical passport, and a certificate of the energy characteristics of the building. The application should specify also the cadastral identifier of the building in commissioning.
The commissioning certificate is issued within seven days as from the date of the investor’s application on the basis of verification of the completeness of the file and registration of the commissioning. An on-the-spot inspection may be carried out before that at a decision of the chief architect of the municipality.