Abstract: The activity of construction is among the most financially considerable in Romanian economy. The practical aspects have brought to the fore how the judicial rules are not complete. This article centers around two problems with a major economic impact that have turned up in the case-law: appealing the town planning certificate and carrying out the sanction of demolishing the illegally erected building. In the case of the former, we will assess the legal regulation of the town planning certificate, along with elements from the theory of administrative documents that are related to this certificate, and we will conduct a critical analysis of the solution found by the High Court of Cassation and Justice concerning the legal nature of the town planning certificate stated in the Decision for the Admission of Appeals in the interest of Law no. 25/2017. In the case of the latter, we will examine the situations where a disposition issued by the court is formulated concerning the demolition of the building that infringes on the law and we will present and assess the solutions found in the case-law that are relevant for this domain.
Keywords: construction, town planning certificate, demolition, administrative document, administrative contentious procedures
One of the activities with the largest financial heft in Romanian economy, which also bears a significant social impact, is the activity of construction, respectively the activity of construction carried out by authorized natural or legal persons. To exemplify this, the studies on Romanian economic conjuncture for the years 20171 and 20182, although signaling a certain decrease caused by insufficient demand, the lack of a work force and financial issues (along with season-related adverse weather, hindering the execution of major exterior construction work during the winter or the months that are excessively affected by precipitation), which is also backed by the decrease in the number of building permits issued by the competent public authorities in comparison to the previous months (but with a slight, insignificant increase of 3.4% in comparison to the previous year)3, show that all of these issues do not significantly affect the large stake that this domain has in the economic sector4.
From a legal standpoint, there is a regulation in Romanian law for these activities that is materialized through several normative documents, which are meant to regulate the procedural steps that any potential constructor must take from the moment that they wish to erect a building or develop a real estate project on a piece of land that is their property up until the finalization of the construction activity and the formalities that follow, marking the procedure as definitive.
We have thus analyzed, in the following text, the problematic situations, the theoretical and practical aspects that pertain to the first step in the activity of construction (namely the preliminary document – the town planning certificate) and those that follow the finalization of this activity, both bearing a major economic impact. Thus, the following discussion shall be carried out with a view towards the legal aspects that have to do with the interdictions or restrictions to build that may appear in town planning certificates issued on a local level and the interpretations that the supreme court5 has given for these certificates. Of course, the authorization and the activity of construction itself are both marked by a series of specific administrative procedures, but the potential economic impact (on the constructor, third parties or company) results from the finalization of the construction, respectively its reception or, on the contrary, the effects stemming from a resolution to demolish the illegally erected construction.
a) The definition of the town planning certificate
Lawmaking in what concerns town planning developed after 1990 as a result of the appearance and rise of private investments in the domain of constructions. Law no. 50/19916 concerning the authorization of the execution of constructions and certain measures for the creation of housing refers to the town planning certificate, emphasizing that the request for the issuing of a building permit must be submitted along with the town planning certificate, a document that must contain information concerning the legal, economic and technical regime of the lands and constructions. This information shall stem from the town planning documentation drawn up by the local councils of each locality at the request of their respective mayors.
The negative consequences for the lack of basic unitary rules, which should be in harmony with the requirements concerning the protection of the environment as well, were soon felt. Law no. 350 from July 6, 20017 on land and town planning sought to eliminate these shortcomings. In this normative text, the contents of section 4 (art. 28-34) are dedicated in their entirety to the town planning certificate. According to the definition found in the normative text, the town planning certificate is “the mandatory briefing document through which the authority of the local or county public administration states the legal, economic and technical regime of the immovable property and the conditions that are necessary for investment, real estate transactions or any other real estate operations, according to the law.” The town planning certificate is issued at the request of any applicant, whether they are a natural or legal person, who may be interested in knowing the data and regulations to which said immovable property is subject to.
b) Types of town planning certificates by their contents
We can deduce from the legal provisions that the applicant may be interested in the legal, economic and technical regime of an immovable property (a plot of land or a building) in order to assess the conditions for a subsequent real estate investment, for example, whether the land is adequate for construction, what the construction can be destined for, what height it may have, what the maximum coefficient of occupancy of the land is and any other information of this nature. The applicant may, however, be considering a concrete real estate project, in which case they shall solicit that the town planning certificate show them to what extent this project may be carried out on a certain plot of land. The right to solicit the town planning certificate is not conditioned by ownership over the plot of land for which the information is requested, as the law mentions that it is sufficient for the applicant to be interested in the plot of land and also specifies expressly that the deed proving ownership of the immovable property is not necessary in order to issue the town planning certificate (art. 30, argument III). Art. 6 para. 4 of Law no. 50/1991 specifies that, within the contents of the request for a town planning certificate, information concerning the purpose of this request must also be stated, while art. 29 para. 5 of Law no. 350/2001 states that the purpose for the issuance of the town planning certificate must be mandatorily mentioned within it, respectively, whether it is issued for general knowledge or in relation to a determined objective. Several town planning certificates can be issued for the same parcel of land to the same applicant or several different applicants. Under the same urban management regulations, the content of these certificates, based on the territorial and town planning documentation and the other regulations in this domain, must be identical for all applicants (art. 30 argument I).
For the situations where the town planning certificate is requested in order to obtain a building permit for a concrete determined objective and the entity issuing the town planning certificate finds that the applicant’s intention does not fit the framework of the provisions of the approved town planning documentation, the town planning certificate must contain information concerning the update / alteration regime of the town planning documentation and local regulations. In case the applicant’s intention does not fit into the provisions of the approved town planning documentation, the applicant shall be informed of: the impossibility to alter the provisions of the approved documentation, the need to obtain a notice of opportunity, as stated in the law, or the possibility to elaborate an altering town planning documentation with no notice of opportunity, as stated in the law, wherever the case may be [art. 31 let. d) of Law no. 350/2001].
Judging by the abovementioned legal dispositions, there is a close relationship between the town planning certificate and the building permit, as the latter can only be issued in accordance with the information found on the town planning certificate. At the same time, we can see that, through the town planning certificate, it is possible to show that the proposed investment can be fulfilled, as it is in accordance with the legal, economic and technical regime of the immovable property or that additional steps must be taken in order to obtain certain derogations from the town planning certificate that is in force, or that the intention cannot be brought to fruition.
c) The duration of the town planning certificate’s validity
The town planning certificate has a limited period of validity, given that the regulations concerning the legal, economic and technical regime of the immovable properties can be altered in accordance with the requirements that arise along with the development of the locality. The period of validity is established by its issuing entity, according to the law, depending on the importance of the area and investment. The town planning certificate is instrumental in the issuance of the building permit in situations where the permit is necessary for the construction works that are to be carried out. In order to abide the principle of the security of juridical relationships, if during the time in which the town planning certificate is valid, the local town planning regulation is altered in terms of the juridical, economic or technical regime of the immovable property that the issued town planning certificate refers to, the building permit solicited during the period of validity of the town planning certificate shall be issued in accordance with its specifications. Otherwise, the dispositions of art. 7 para. 2 of Law no. 50/1991 show that the technical documentation for the authorization of the execution of construction works, which is an excerpt of the whole technical project, shall be elaborated in accordance with the requirements of the town planning certificate, containing the notices and agreements requested by it.
Principles of administrative procedure that are relevant
in what concerns the town planning certificate
Romania has not yet adopted a law concerning administrative procedure and, thus, many issues in this regard are solved within the doctrine or by the case-law. In accordance with the definitions of reference found within the doctrine, which claim that the specificity of the administrative documents consists, on the one hand, in its being issued in order to organize the execution or in order to execute the laws and other regulations passed by the bodies of the state per se8, and, on the other hand, in its being issued in the exercise of public authority in order to create, alter or terminate juridical relationships9, Law no. 554/200410 on contentious administrative procedures currently defines the administrative document as the unilateral document of individual or normative scope issued by a public authority, in the name of the state, in order to organize the execution of the law or to execute the law per se, and create, alter or terminate juridical relationships. The same law assimilates unjustified refusal to settle a request into the administrative document, which is defined as the explicit expression, in an abuse of power, of the will not to settle the request of a person. The doctrine has pointed out that, by “unjustified refusal to resolve a request referring to a legitimate right or interest,” the lawmaker foresaw the possibility to reject a request by breaking the law, through the wrongful interpretation of the law or by erroneously establishing a state of affairs.11 Ever since the inter-war period, the case-law has believed that the situation in which the answer received makes it appear as though the request cannot be admitted also constitutes unjustified refusal12. A response such as this one does not need to take on the form of an administrative document, as it may also be a simple response letter or an ascertaining document which does not however feature the content that the applicant believes to be compliant with the law and helpful in their subsequent obtainment of a certain right.13 The assimilation is made for the purpose of allowing the refusal which is perceived as unjustified to be subject to inspection by a court of justice and for the purpose of obtaining a decision from the court through which the administrative authority must honor the request, given that art. 1 of Law 554/2004 allows any person who has suffered damages due to an administrative document access to the courts of justice. Obviously, damages can also be inflicted by the refusal to respond to a request in case the refusal has no legal grounds and, as such, by assimilating the law, it is now possible to obtain a decision from a court of law in the case of such a refusal as well.
In Romanian literature, in reference to the documents issued by public administration bodies, there is a distinction made between administrative documents, which produce juridical effects, creating, altering or terminating juridical relationships on the one hand, and administrative operations, on the other, which sometimes are preliminary to the issuance of a juridical document. The latter do not produce juridical effects, even if the administrative document that is to be issued must be in accordance with the contents of the preliminary document. The juridical effects will only begin upon the issuance of the juridical document, respectively the administrative document.14
The distinction between labeling a document as an administrative document per se or an administrative operation that is preliminary to the issuance of an administrative document is important, considering the procedure that must be undertaken in cases where the legality of said document is appealed.
Thus, in the cases where the legality of an administrative document is appealed, according to the dispositions of Law no. 554/2004, the party injured by said document must first address the entity that issued the document or their hierarchical superior, requesting that the issuing entity revoke the document or the hierarchical superior render it void on the grounds of non-legality (art. 7 para. 1). In cases where the party to whom the request is addressed does not respond, the injured party can address a court of law specializing in contentious administrative procedure, within the period of time provided for in the law, requesting that the administrative document be rendered void. If the injured party believes that the administrative document is not legal in what concerns its content and wishes the issuance of the same type of document, but with a different content, that they believe to be pursuant to the law, then they shall request from the court of justice that the issuing body be obligated to release the administrative document with the content that they believe to be in accordance with the law and through which they can obtain their entitlement.15
In case the document that prepares the issuance of the administrative document is not drafted in accordance with the law, the injured party may only appeal the administrative document that is issued on the basis of the preliminary document in a court of law, by following the procedure described above. By requesting the annulment of the administrative document, the injured party shall request that the court of justice issue a verdict in what concerns the legality of the administrative operations that lead to the issuance of the appealed administrative document as well (art. 18 para. 2).
It is also for procedural reasons that it is important for us to determine whether an unjustified refusal is expressed through an administrative document or a document that has no such value. This is because, according to art. 7 para. 5 of Law no. 554/2004, in cases where the legal action centers on an unjustified refusal, the injured party can directly address a court of law that deals with contentious administrative matters, without it being necessary to first address the entity issuing the refusal or their hierarchical superior. In this case, the plaintiff shall only request that the administrative body be obligated to grant them a response with contents that are helpful for the obtainment of the entitlement that they seek, contents that the plaintiff believes to be pursuant to the law. It is obvious that this provision is only applicable in the situations where the unjustified refusal is contained in a document that does not bear the value of an administrative document. For example, this may be an ascertaining document, which, in the doctrine, has been considered to be devoid of the characteristics of an administrative document, in that such a document does not contain a manifestation of will that produces juridical effects, but merely ascertains the existence of a material or juridical fact or certifies a certain quality or situation16. The dispositions of Government Ordinance no. 33/200217 back this statement, clarifying that the “certificate” is a document that confirms the accuracy or reality of a fact or certifies a certain quality in order for the person requesting its issuance to be able to capitalize on certain entitlements.18
In the cases where the unjustified refusal appears on an administrative document, for example, in the situation where, due to a decision made by the local council, the request to approve an urban management plan that is exempt from the town planning rules in force which are applicable to a certain immovable property, for reasons that contradict the law is rejected, the plaintiff will have to ask the court of contentious administrative law to render the administrative document that caused the damages void and obligate the administrative body in charge of its issuance to release a document that recognizes the requested entitlement. In this situation, the plaintiff must follow the preliminary procedure provided for in art. 7 para. 1 of Law no. 554/2004, namely to request from the public administration body issuing the administrative document that has caused the damages that they render said document void before addressing a court of law.
e) The juridical qualification of the town planning certificate
In what concerns the town planning certificate, the judicial practice has brought up the issue of the procedure that must be followed by the applicant who is unsatisfied with its content whenever they consider that the town planning certificate is not pursuant to the legal provisions. The first matter that had to be untangled was the juridical nature of the town planning certificate, namely whether it is an administrative document or not.
Some authors believed that, under Law no. 50/1991, it could be believed that the town planning certificate is an administrative operation that is preliminary to the issuance of the building permit, the latter being an administrative document, but that, along with the entry into force of Law no. 350/2001, it became an administrative document due to the definition it was given in this law, which uses the notion of “document.”19 We do not agree with this interpretation. The definition for the town planning certificate present in Law no. 350/2001 speaks of an “informative document,” which means that no decision is expressed through the town planning certificate, as it only summarily presents the juridical, economic and technical conditions for a certain immovable property, sourced from the local urban management regulations.
When presented with an appeal in the interest of the law, a procedure through which the General Prosecutor of Romania intends to obtain a decision from the supreme court concerning an issue which, in the judicial practice, has been met with divergent resolutions, the High Court of Cassation and Justice of Romania (HCCJ) concluded that, in the cases where a town planning certificate is requested for a determined objective, the juridical classification of this certificate differs depending on whether its conclusions aim to underline whether the intention of the applicant can be fulfilled or, on the contrary, that said intention cannot be fulfilled, given the dispositions in the local urban management regulations, or whether there are additional steps that the investor must take in order to eventually obtain the building permit.
Thus, in the first case, subsequent to the conclusion that the intention of the applicant can be fulfilled, the building permit shall be issued in accordance with the information specified in the town planning certificate. As the building permit is the administrative document that produces juridical effects, the party that was presumably injured by the issuance of this permit will be able to request the annulment of the building permit in court, while also requesting that the court cast a decision in what concerns the legality of the town planning certificate as an administrative operation from which the non-legality of the administrative document stemmed.
However, in the second case, where the town planning certificate concludes that the applicant’s intention cannot be fulfilled, as it is not in accordance with the rules of the local urban management regulations, the HCCJ concluded that the applicant has no means to address a court of justice, in the cases where it is considered that the mentions found in the town planning certificate are not pursuant to the normative dispositions. The HCCJ has considered that the usual route in case of an unjustified refusal cannot be taken due to the fact that it is possible for the town planning certificate not to contain a refusal concerning the fulfillment of the intention, but to impose certain conditions for this fulfillment, conditions that the applicant may consider not to be in accordance with the normative dispositions. Thus, the HCCJ, through Decision no. 25/2017 for the Admission of Appeals in the Interest of the Law20, which is binding to all courts of justice, decided that, in light of these arguments, the juridical character of “administrative document” shall be kept by the town planning certificate through which the interdiction to build or any other limitations are imposed, making it possible, as a consequence, for the competent court of law dealing with contentious administrative matters to inspect the legality of said document.
Given that we speak here of the inspection of the legality of an administrative document, it is necessary for the procedure to appeal the town planning certificate in such a case to follow the usual route for the appeal of such a document: a request to repeal the document addressed to the issuing administrative body, and, in the case of a refusal, legal action along with a request to render the non-legal document void, followed by a request for the issuance of another town planning certificate with the contents that the applicant deems to be in accordance with the legal dispositions on the matter.
The analysis of Decision no. 25/2017 of the High Court
of Cassation and Justice
Through Decision no. 25/2017, the HCCJ in fact admitted for the same type of document to both being able to have the juridical character of an administrative document that produces juridical effects and to also being able to represent a simple administrative operation preliminary to the issuance of an administrative document, depending on its content. An ascertainment such as this one seriously affects, in our opinion, the principles of administrative procedure, according to which the same type of document must always have the same juridical character, because, if otherwise, the predictability of the law can be hindered.21
The reason invoked by the HCCJ, namely the non-existence of access to justice in the cases where, through the town planning certificate, an interdiction to build or other limitations were imposed, does not withstand a thorough analysis.
Such an analysis must commence from the fact that the town planning certificate is defined as an “informative document.” As a result, it contains information taken from a normative administrative document: the local urban management regulations to which the general urban management plan of the locality is attached. We speak here of a result of research into a state of affairs (the immovable property for which the town planning certificate is requested with its physical characteristics) and into a juridical situation (the legal framework concerning buildings which is determined by the local urban management regulation and the general urban management plan of the locality). The conclusions of this research have the juridical character of an assent, namely an expert opinion issued for the purposes of the issuance of an administrative document, a document which must be in full accordance, namely to contain the same conclusions as said assent. The conclusions of the town planning certificate are necessary for the administrative body that issues the building permit. It is only the will of this authority that can grant the right to build, as art. 6 para. 5 of Law no. 50/1991 expressly states, emphasizing that the town planning certificate does not confer the right to carry out any construction works. The specialized literature has pointed out that the assent is an administrative operation that does not produce juridical effects.22 The conclusion according to which the desired objective cannot be built does not create, alter or terminate any juridical relationships. The conclusions according to which, in order for the right to build the desired objective to be awarded, certain procedures must be carried out, do not produce juridical effects either.
Contrary to the beliefs held by the HCCJ, the judicial practice has demonstrated that, in cases where a document does not fulfill the conditions reserved for administrative documents and is simply an informative or ascertaining paper or any sort of response to a request, contains information that the applicant considers to be non-legal, they can address the court of justice to request that the authority in charge with the document reissue it with the correct content. The dispositions of Law no. 554/2004 expressly mention that any person has the option to address a court of justice in order to request that a public authority be obligated to issue a certificate or any other simple document (art. 18 para. 1). The interpretations found in the case-law and doctrine on the notion of “unjustified refusal” (the issuance of documents that do not produce juridical effects, but are necessary in order to obtain administrative documents, documents that contain information that is contrary to normative dispositions or erroneous states of affair are classified as unjustified refusals) that we have previously referred to have reached the same conclusion and, according to the expressly stated legal provisions, any situation where there is an unjustified refusal can be subject to the inspection of the courts of law.
Furthermore, the dispositions of Decision no. 25/2017 lead to the conclusion that any refusal that blocks the obtainment of an administrative document conferring certain rights or any response that imposes limitations or conditions for the obtainment of such an administrative document qualifies as an administrative document. A conclusion such as this one would render content-less or unjustifiably reduce the content of the notion of “unjustified refusal,” which is in opposition with the findings of the case-law and literature, which have been constant ever since the inter-war period.
The argument according to which, given that town planning certificates cannot be issued for the same parcel with different contents, that means that the removal of the town planning certificates featuring erroneous information is necessary, does not withstand the analysis based on the established principles of administrative procedure either.
On the one hand, the town planning certificate has a limited period of validity, and, as a result, it is possible for its very validity to cease before the obtainment of a decision from the court of law concerning its annulment, and an administrative document whose effects have ceased can no longer be annulled.
On the other hand, it is possible to issue several town planning certificates to several applicants and for just one of them to solicit the annulment of the certificate issued at their request and then to obligate the authority responsible with the town planning certificate to re-issue it with a different content. In this case, if the request of this applicant is accepted, there will inevitably be town planning certificates featuring different contents for the same parcel: one issued as a result of a decision from a court of law, and the others issued at the request of persons other than the claimant, which remain unchallenged before the court. In our opinion, the dispositions in art. 30 argument I of Law no. 350/2001 refer solely to the obligation of the issuing body to be consistent in their interpretation of the local urban management regulations in the absence of obligations stemming from a decision given by a court of justice.
a) General factual aspects
As shown in the introduction to this study, the activity of construction has a considerable weight in the overall economy of Romania, which makes it that much more attractive, but also more liable of potential breaches of the legal provisions regulating it.
There are, thus, multiple theoretical hypotheses, but also practical examples that serve to illustrate these non-legalities, ranging from the minor failures to closely follow the text of the building permits issued by the competent authorities (where it is possible to return within legal bounds after certain alterations or adjustments are made to the erected construction) to the insurmountable failure to abide these authorizations, making it impossible to correct any errors without the total demolition of the construction thus erected, and even to construction work carried out without a permit and in the absence of any justification.
In situations such as these, the overall civil society or the persons directly interested, respectively the neighbors whose rights are infringed upon or whose immovable property is negatively impacted from a patrimonial point of view, have become more reactive, taking the legal measures that are available to them: notifications addressed to the competent authorities or legal action23.
b) The legal framework, interpretations
In accordance with the legal provisions, namely art. 1 para.
1 of Law 50/1991, which we have already mentioned, “the execution of construction work shall be allowed only on the basis of a building or demolition permit, issued with respect to the conditions of this law, at the request of the bearer of a verifiable right over an immovable property – land and / or constructions – identified through a land register number, in the cases where the law does not state otherwise,” with a few exceptions that are not important for this discussion. The provisions are, thus, imperative and derogation impossible, an aspect that results from the abovementioned article, but also from all of the norms that regulate building and urban management activities.
Thus, any construction activity that exceeds the limits of the building permit or is carried out in the absence of a building permit is, from the very start, non-legal. We also cannot omit the hypothesis of construction work that appears to be legal, but it is the very permit on whose basis this activity is carried out that is characterized by non-legality.
In what concerns the first hypothesis, which we will not insist on in this article, this is a matter that actually concerns the building activity per se, with no relation to the legality of the administrative documents on whose basis the construction work is carried out. This issue is subject to the provisions of art. 32 para. 1 of Law 50/1991, upon determining the contravention, when it is mainly the court of law that shall be competent in settling the matter (without excluding the situations wherein the decisions related to this aspect were given by courts of justice dealing with contentious administrative issues), which is extremely problematic from several points of view, and has already been analyzed in the specialized literature.24
As we can tell from what we have discussed previously, the demolition of constructions can commence both on the basis of certain norms established in administrative law and on the basis of norms from misdemeanor law, as well as, sometimes, civil law (as a result of real estate accession, a juridical institution of civil law which we will not be focusing on in this analysis).
Beside what we have already mentioned, there are also classifications and sub-classifications that establish multiple categories of cases of demolition, starting from requested demolition (with its subcategories: sanction, remedy, compromise), which is the purpose of litigation, and effective demolition (a legal or illegal juridical fact), which is the cause of litigation25.
c) The dismantling of constructions – a head of claim within administrative law litigation
There is a certain form of construction demolition that stands apart among the classifications that we have outlined above, which has constantly been the subject of discussion in the practice of the courts of law, as the defendants (almost always the entity issuing the permit and its beneficiary) almost always invoke the inadmissibility of such a claim, as this exception is a line of defense for the defendant, which, in Romanian law, in the cases where it is accepted, practically paralyzes the legal action, with its admission or rejection depending exclusively on the training, experience or vision of the courts of law in the absence of clear legal provisions. Most frequently, the courts choose the latter option, believing that such a claim can be accepted in the case of administrative law litigation, given the aspects that we will explain below.
It is obvious that, in order for the demolition of a construction to be possible, there needs to be an enforceable title, namely a disposition from the court of law, without which the demolition is impossible.
The matter in discussion refers to the possibility of such a claim during contentious administrative litigation.
The subject of administrative law litigation is relatively restrictive compared to other types of litigation, as regulated by the provisions of art. 8 and 18 of Law 554/2004, with litigation for the annulment of the document being available (whether wholly or partially, the reparation of the damages and, possibly, punitive damages)26 as an alternative to the claim to resolve the abovementioned unjustified refusal.
It is obvious, given these facts, that we need to ask the question of where this request for the demolition of constructions fits in this context.
First of all, through the manner in which the procedural normative document is formulated, it is obvious that such a claim is possible in the Romanian contentious administrative law in an ancillary form, subsequent to the head of claim for the annulment of the administrative document, namely the building permit or the ascertainment of the non-legality of the town planning certificate that was followed by the issuance of the building permit.
From the lens of the legal provisions, it is obvious that a head of claim for the demolition of the constructions can be classified and considered as a head of claim that seeks “the reparation of the damage caused.”
The demolition of a construction is, however, at least in the practice of the Romanian courts of law, rare, both from the perspective of the claim made by the applicant and especially from the point of view of the resolution passed by the court of law.
The rarity of such situations is connected, most probably, to two aspects. One is subjective and rather more practical, and we will address said aspect in the next segment of this study, as it will center on the difficulties and hesitation inherent to the statement of such a resolution.
The other aspect, which is more objective and juridical in nature, is tied to the absence of a clear provision within contentious administrative law that refers to such an aspect, which can be explained, given that the mentioned normative document is the general law. Its provisions must be corroborated with those of Law 50/1991, which makes a reference in art. 12 to the court’s power to annul the permit (a redundant provision if we take into consideration that any kind of administrative document is subject to the inspection of the court of law regardless) and to art. 32, which, however, refers to misdemeanor norms.
Our opinion (confirmed by the resolutions reached by the courts of justice of Cluj) is that, in the domain of contentious administrative law, the demolition of constructions is exclusively possible due to the provisions of art. 8 and 18 of Law 554/2004, without any correlation to those of art. 32 of Law 50/1991, which expressly refer to the determination of the contravention (which, in many cases, including some of the ones we will address below, does not exist). Any kind of head of claim formulated on the basis of the provisions of Law 50/1991 ties the demolition of constructions to the idea of a contravention, thus excluding the application of Law 554/2004.
Art. 8 of Law 554/2004 speaks, however, of “the reparation of damages,” which can be requested by the claimant. Under these circumstances, as there is no reference to the type of damage or injury that can benefit from this reparation and there are no conditions that demand a financial assessment, it becomes clear that the reparation of the damages can be covered “in kind”27 as well whenever it is appropriate to do so, namely when the only possibility to provide reparations for the injury caused due to a construction is its demolition, which is a head of claim that is perfectly admissible.
Another issue that arises from here is related to the necessity to maintain the proportions in what concerns the reparation for these damages. This is because, as there are no provisions in administrative law in this sense, we must turn to those in the obligational civil law of Romania, which states that the reparations must be proportional to the damages suffered.28
Both the case-law and, sometimes, the doctrine uphold that this demolition, bearing the value of a rule, should be partial, while total demolition should be the exception.29
There are, however, two problems that must be mentioned concerning these aspects.
First of all, in actuality, in most cases, the partial demolition of a construction is quite difficult and nearly impossible to do in order to secure the reparation for the damages, as we will prove below. Moreover, most of the time, the infringements upon the norms that lead to the annulment of the building permit are such that the reparation of the damages can exclusively be achieved through total demolition. We refer here to the majorly deficient constructive aspects, e.g. exceeding the property limits, breaching the urban management indices starting from the footprint of the construction, etc., whose remedy cannot be achieved without the integral dismantling of the construction and restoring the land to its initial state.30
Furthermore, total demolition does not pose many discussable issues, because, in time, the matter that constituted “the bone of contention” was resolved: in general, due to the need for a permit to enact a demolition, the decision made by the court of law for contentious administrative issues obviously serves as an administrative document that allows direct execution, which is what happened in the case we shall discuss below.
A partial demolition comes with numerous problems in what concerns the actual fulfillment of the decision, as there is also a risk that that is impossible from a technical standpoint. Let us not forget that the partial demolition of a construction is a material fact that entails certain architectural or constructive requirements which remain unsupported in the cases where, if the court of law only rules on the demolition, the decision can, thus, be directly fulfilled, but there are no other obligations that are incumbent to the owner-constructor, so we are now still dealing with a situation wherein the immovable property has no properly issued authorization from a legal standpoint for the new constructive and architectural structure, which exists as such without the guarantee of a professional and without an adequate technical solution, and, thus, presenting high risks. Moreover, a partial demolition, such as this one, is, we believe, even impossible without the technical assessment of an expert, which is to provide the technical possibility to undertake such a demolition, and that leads to the generation of certain mandatory evidentiary aspects, namely the conducting of an expert report that contains these verifications. A report like this one would still, however, not take the place of and would not have the means to take the place, from a procedural standpoint, of the technical solution necessary for the new immovable property that is “born” as a consequence of the decision issued by the court of law aiming for a partial demolition.
Under these circumstances, such a demolition is still a relatively restrictive measure, which must be taken with caution and reservation in the future by the courts of law, given the aspects that we have outlined above.
d) The Romanian judicial practice. Delivered verdicts and the execution of the decisions made by the courts of law
Starting, thus, from the abovementioned judgment, there is a series of solutions that have become more or less public in what concerns the obligation to demolish certain constructions, rooted in the provisions of contentious administrative law and delivered by contentious administrative courts of justice.
The solutions that we wish to mention below do not have as much to do with the matter of the non-legality of the administrative documents or building permits, because, without having studied the documents in the file, they would be difficult to identify, but they do relate to the issue of the demolition of constructions that have already been erected in each individual case31.
The most recent resolution of this type is also the one that was executed. We speak here of a litigation that had to do with a building permit for a block of flats (4 stories plus an attic) issued by the City Hall of Bucharest, Sector 5, which was annulled (the reasons that we can detect from the information that we have at our disposal are related to exceeding the property limits and the height prescribed for the building), and the court of law alternatively decided on the demolition of the construction work that was already carried out and the restoration of the plot of land to its initial state. The existing public information suggests that there was both a non-legally issued permit and a breach of the limits imposed by said permit, making the beneficiary liable for two non-legalities. By refusing to willfully carry out the decision of the court (which is a breach of criminal laws as well), they were again taken to court, with the neighboring association of property owners obtaining the demolition at their own expense. It was only after this new resolution that the beneficiary commenced the demolition proceedings.32
This is a remarkable resolution in Romanian case-law, as it is, according to our information, the first and, so far, the only case where the final step was taken, namely the dismantling of the construction work for which the authorization papers were annulled, the subject of which was an entire block of flats.
Another case, which is possibly just as famous due to its large scale, is about a 10-story block of flats that was also erected in Bucharest, Sector 2, on a plot of land that was initially supposed to be a green space and a parking lot, without abiding the legal distance between neighboring constructions or the norms of construction. As a result of the actions of several citizens, associations and institutions, the non-legality of the town planning certificate was ascertained and the building permit was annulled, obligating the beneficiaries to demolish the illegally erected building.33 The appeal was rejected due to its being considered unfounded in February 2018. However, there is no public information about the state of the demolition of this immovable property yet, in a context where, according to the web portal of the court of law, in a similar fashion as the previously mentioned litigation, the demolition of the construction at the expense of the beneficiary was ordered by the court. It is obvious that the execution of this order will be not only very costly, but also difficult from a technical point of view, as the building is nearly finished.
In a similar manner, the courts of law of Cluj-Napoca annulled the building permit for and ordered the demolition of an immovable property – a house with one story which also did not meet the requirements of distance established by the law for neighboring buildings and did not heed the urban management regulation, neither at the level of the permit, nor at the level of the actual construction work, as the house was built without abiding the distance imposed in the permit. There were, however, two litigations, because, after the annulment of the permit, the beneficiary continued the construction work, probably hoping for a subsequent falling into compliance with the law, and so, there was need for new legal action in which the demolition of the construction was requested. As the measures for these procedures fell within the responsibility of the local authorities, after their appeal, the court decided that these demolition operations were to be the responsibility of the owner. Since the owner refused to willfully undertake these procedures, the sentence was carried out by the neighbor who suffered the damages with the mediation of a court enforcement officer, and their expenses were to be recouped in the future to the extent that that would be possible.34
Lastly, the final solution that we will refer to is also the most recent that we are aware of and the one that we have the most information on35. The verdict is, in its way, spectacular, given the large scale of the construction yet again, as it is basically a four-story block of flats, created on 5 levels. The court found here a series of non-legalities in the building permit concerning the communication of false situations in order to be able to comply with the urban management indices (the blueprints submitted were exclusively those of the plot of land and not of another construction situated on the subdivided plot of land), the lack of essential elements in the building permit (sizes, levels, the systematization of the plot of land, etc.), failure to heed the urban management indices, failure to abide the distances between neighboring properties, windows facing the neighboring property, failure to keep within the height parameters specified, etc. Considering that the provisions of art. 12 of Law 50/1991 are also applicable here, the court of law considered that the only way to repair the damages was to demolish this construction, as it was not possible for the construction to come into compliance with the law.
We consider that the reference to the provisions of art. 12 in this statement of reasoning is not sufficient as an argument for the demolition of the buildings, as this article does not refer to a possible demolition at all.
In any case, we can notice here that we are dealing with court decisions that accept requests for the dismantling of constructions, but without their being fulfilled and, most often, ever being fulfilled.
In all cases, we can see that the decision was aimed at the integral dismantling of the buildings as a sole means to apply the law and abide the norms, as well as a sole means to provide reparations for the damages incurred by the plaintiff or plaintiffs.
The resolutions that call for the dismantling of the constructions are, however, remarkable in their rarity and the courage, as it is often deemed, that the courts exhibit in passing them.
Of all of these solutions, however, as we have shown, few are applied in a concrete manner. There is real estate with annulled permits or even no permits from the very start that are locked in a kind of perpetual stand-by, with no institution or natural or legal person taking the final step, of the demolition proper, and thus, whenever there is a case where the court order is fulfilled, it is always covered by the media.
In Romanian legislation, there are still unknown factors that pertain to one of the most profitable and most frequently encountered activities, economically and not only, the activity of construction. Whether we are talking about an individual who wishes to erect a property for their own benefit or a real estate developer running their construction work-based business, both are subject to the same rules and the same restrictions.
We believe, thus, that the case-law that we have mentioned clarifies a series of aspects. Sometimes, though, the jurisprudential solutions complicate the juridical situation of the parties found in this kind of litigation from certain points of view, due to a degree of unpredictability that remains increased also because of the solutions, which are still relatively rare.
In what concerns the town planning certificate, we wish to emphasize again the state of uncertainty that the supreme court creates in what concerns the concrete aspects, respectively those that have to do with the juridical character of this administrative document. Basically, since no person can be certain that the information contained in this certificate is real and correct, because the entity that is in the possession of this information is the issuing local authority, we wind up in the situation where it is not the law or the norms that bestow the value of “administrative document,” but the conduct of the issuing authority, practically.
In what concerns the building permit, when discussing the failure to abide it, when the damages can be justified, the decision to demolish the construction is clear. However, this comes with a new set of problems, as we have previously shown, which have to do with the extent and the real possibility to follow through on these decisions, with the concrete technical solutions.
Of course, in all cases dealing with these types of litigation that have to do with the two administrative documents discussed in this study, there are future discussions that we can engage in concerning the common fault of the issuing authority and the constructor, the possible quantification of this fault and the extent to which each is at fault, the manner in which the economic costs are to be split among the two, etc.
1 http://www.insse.ro/cms/sites/default/files/field/publicatii/studii_conjuctura_economica_in_constructii_tr4_2017.pdf accessed on 29 Dec. 2018, 07:45.
2 http://www.insse.ro/cms/sites/default/files/field/publicatii/studii_conjuctura_economica_in_constructii_tr2_2018.pdf accessed 29 Dec. 2018, 07:44.
3 http://www.insse.ro/cms/sites/default/files/com_presa/com_pdf/autoriz10r18.pdf accessed on 29 Dec. 2018, 08:02.
4 https://www.zf.ro/companii/investitiile-in-economie-au-crescut-cu-14-in-t1-la-aproape-16-mld-lei-dar-lucrarile-de-constructii-scad-cu-3-8-17245785 accessed on 29 Dec. 2018, 08:09.
5 Visegrády, A., (2015). Judge-made Law and the Effective Legal System. Fiat Iustitia, no. 1.
6 Republished in the Official Gazette of Romania, Part I, no. 933 of October 13, 2004.
7 Published in the Official Gazette of Romania, Part I, no. 373 of July 10, 2001.
8 Iovănaş, I. (1977). Drept administrativ şi elemente ale ştiinţei administraţiei (Administrative Law and Elements of Administrative Science). Bucharest: Editura Ştiinţifică şi Pedagogică, p. 219.
9 Iorgovan, A. (2002). Tratat de drept administrativ (A Treatise on Administrative Law), vol. II. Bucharest: ALL BECK, p. 24.
10 Published in the Official Gazette of Romania, Part 1, no. 1154 of December 7, 2004.
11 Chiriac, L. (2011). Drept administrativ. Activitatea autorităţilor administraţiei publice (Administrative Law. The Activity of Public Administration Authorities). Bucharest: Hamangiu, p. 25.
12 The Court of Cassation, Decision no. 603 of March 27, 1935 in Jurisprudenţa Generală a României (The General Case-law of Romania), 1953, referenced in Iorgoivan, A. (2002). Tratat de drept administrativ (A Treatise on Administrative Law), vol. II. Bucharest: ALL BECK, p. 493.
13 The case-law has considered that, for example, the addresses made by the Insurance Found for Attorneys and, respectively, the Ministry of Labor and Social Protection, through which the percentage of the attorney’s income that must be considered when estimating their pension entitlements is communicated. In this regard, see Decision no. 568 of March 27, 1997 by the section dedicated to contentious tax and administrative issues of the Supreme Court of Justice, addressed in A. Iorgovan, op. cit., p. 484.
14 Petrescu, R.N. (2004). Drept administrativ (Administrative Law), Cluj-Napoca: Accent, p. 300. Also see Iorgovan, A. (2002), Tratat de drept administrativ (A Treatise on Administrative Law), vol. II, Bucharest: ALL BECK, p. 56.
15 Fodor, E.M. (2017). Drept administrativ (Administrative Law), Cluj-Napoca: Albastra, pp. 402-403.
16 Drăganu, T. (1955). Actele de drept administrativ (Documents Related to Administrative Law). Bucharest: Editura Ştiinţifică, p. 123.
17 Government Ordinance no. 33/2002 on the regulation of the issuance of certificates by central and local public authorities, published in the Official Gazette of Romania, Part I, no. 88 of February 2, 2002.
18 Petrescu, R.N. (2004). Drept administrativ (Administrative Law), Cluj-Napoca: Accent, p. 299.
19 A. Iorgovan apud Fodor, E.M. (2017). Drept administrativ (Administrative Law), Cluj-Napoca: Albastra, p. 190.
20 Published in the Official Gazette of Romania, Part I, no. 194 of March 2, 2018.
21 John Austin, the noted legal philosopher has also underlined the importance and the effect of judicial lawmaking. See Kecskes, A. (2015). Inside and Outside the Province of Jurisprudence. Rechtstheorie, vol. 46. no. 4. pp 465-479.
22 Apostol Tofan, D. (2015). Drept administrativ (Administrative Law), vol. II, 3rd edition, Bucharest: C.H. Beck, p. 36.
23 https://www.hotnews.ro/stiri-administratie_locala-21757894-inca-victorie-cetatenilor-lupta-constructiile-ilegale-justitia-anulat-autorizatia-pentru-bloc-spatiul-verde-din-bucuresti-cere-demolarea-constructiei.htm accessed on 30 Dec. 2018, 09:34.
24 Podaru, O. (2014). „Contenciosul administrativ „răsturnat” între retrogard și vizionar”, (Contentious Administrative Law „Tilted” Between Retrograde and Visionary), Studia UBB. Iurisprudentia, no. 1/2014, pp. 60-70.
25 Oodaru, O. (2015). Dreptul amenajării teritoriului, al urbanismului și al construirii. Vol. IV – Un deznodământ nefericit: desființarea construcțiilor (Territorial Management, Urban Management and Construction Law. Vol. IV – An Unfortunate Outcome: the Demolition of Constructions). Bucharest: Hamangiu, pp. 7-21.
26 Bogasiu, G. (2015). Legea contenciosului administrativ comentată și adnotată (Contentious Administrative Law, with Comments and Annotations). Bucharest: Universul Juridic, Bucharest, pp. 275, 502-503.
27 Podaru, O. (2015). Dreptul amenajării teritoriului, al urbanismului și al construirii. Vol. IV – Un deznodământ nefericit: desființarea construcțiilor (Territorial Management, Urban Management and Construction Law. Vol. IV – An Unfortunate Outcome: the Demolition of Constructions). Bucharest: Hamangiu, pp. 33-34.
28 Pop, L. , Popa, I. F., Vidu, S. I. (2012). Tratat de drept civil. Obligațiile (A Treatise on Civil Law. Obligations), Bucharest: Hamangiu, pp. 286, 565-571.
29 Podaru, O. (2015). Dreptul amenajării teritoriului, al urbanismului și al construirii. Vol. IV – Un deznodământ nefericit: desființarea construcțiilor (Territorial Management, Urban Management and Construction Law. Vol. IV – An Unfortunate Outcome: the Demolition of Constructions). Bucharest: Hamangiu, pp. 192-203.
30 Of course, if the owner of the plot of land or the bearer of a verifiable entitlement so desires, nothing can impede them in initiating a procedure through which they are to be issued a building permit that fully heeds the legal and urban management provisions that are applicable for said plot of land.
31 For the public information that can be studied within the courts of law by the demographics to whom it is accessible, see Ungur, L. (2009). “Biroul de informare și relații publice din structura instanțelor judecătorești și a parchetelor de pe lângă acestea” (The Information and Public Relations Office from Within the Courts of Law and the Public Prosecutor’s Office Attached to Them), Fiat Iustitia, no. 2/2009, pp. 8-28.
32 https://stirileprotv.ro/stiri/inspectorul-pro/bloc-nou-din-capitala-demolat-pe-cheltuiala-proprietarului-cum-au-reusit-vecinii-sa-l-oblige.html accessed on 30 Dec. 2018, 14:51.
33 Information on the file: http://portal.just.ro/3/SitePages/Dosar.aspx?id_dosar=300000000598818&id_inst=3 accessed on 30 Dec. 2018, 15:07. Public information: http://www.epochtimes-romania.com/news/perseverenta-invinge-cetatenii-obtin-in-instanta-demolarea-unui-bloc-de-10-etaje-ridicat-ilegal—272804?fbclid=IwAR2gtP6D1bbUa _jdbOmB0iy8qdUb2N5-42AEeFW_T0ePevWY81DWMH6-yM4.
34 https://www.clujust.ro/demolarea-unui-mic-bloc-din-cluj-napoca-sase-ani-de-procese/ accessed on 30 Dec. 2018, 15:39.
35 https://www.clujust.ro/motivarea-deciziei-irevocabile-de-demolare-a-blocului-cu-patru-etaje-dintre-case-din-baciu/ accessed on 30 Dec. 2018, 15:48.
Monographs and articles
1. Apostol Tofan, D., (2015). Drept administrativ (Administrative Law), vol. II, 3rd edition. Bucharest: C.H. Beck..
2. Chiriac, L. (2011). Drept administrativ. Activitatea autorităţilor administraţiei publice (Administrative Law. The Activity of Public Administration Authorities). Bucharest: Hamangiu.
3. Drăganu, T. (1955). Actele de drept administrativ (Documents Related to Administrative Law). Bucharest: Editura Ştiinţifică.
4. Fodor, E.M. (2017). Drept administrativ (Administrative Law). Cluj-Napoca: Albastra.
5. Iorgovan, A. (2002). Tratat de drept administrativ (A Treatise on Administrative Law), vol. II. Bucharest: ALL BECK.
6. Iovănaş, I. (1977). Drept administrativ şi elemente ale ştiinţei administraţiei (Administrative Law and Elements of Administrative Science). Bucharest: Editura Ştiinţifică şi Pedagogică.
7. Kecskes, A. (2015). Inside and Outside the Province of Jurisprudence. Rechtstheorie, vol. 46. no. 4.
8. Petrescu, R.N. (2004). Drept administrativ (Administrative Law). Cluj-Napoca: Accent.
9. Podaru, O. (2014). „Contenciosul administrativ „răsturnat” între retrogard și vizionar”, (Contentious Administrative Law „Tilted” Between Retrograde and Visionary), Studia UBB. Iurisprudentia, no. 1.
10. Podaru, O. (2015). Dreptul amenajării teritoriului, al urbanismului și al construirii. Vol. IV – Un deznodământ nefericit: desființarea construcțiilor (Territorial Management, Urban Management and Construction Law. Vol. IV – An Unfortunate Outcome: the Demolition of Constructions). Bucharest: Hamangiu.
11. Pop, L., Popa, I. F., Vidu, S. I., (2012). Tratat de drept civil. Obligațiile (A Treatise on Civil Law. Obligations). Bucharest: Hamangiu.
12. Ungur, L., (2009). “Biroul de informare și relații publice din structura instanțelor judecătorești și a parchetelor de pe lângă acestea” (The Information and Public Relations Office from Within the Courts of Law and the Public Prosecutor’s Office Attached to Them). Fiat Iustitia, no. 2.
13. Visegrády, A., (2015). Judge-made Law and the Effective Legal System. Fiat Iustitia, no. 1.
2. http://www.insse.ro/cms/sites/default/files/field/publicatii/studii_conjuctura_economica_in_constructii_tr2_ 2018.pdf
7. http://portal.just.ro/3/SitePages/Dosar.aspx?id_dosar=300000000598818&id_inst=3 http://www.epochtimes-romania.com/news/perseverenta-invinge-cetatenii-obtin-in-instanta-demolarea-unui-bloc-de-10-etaje-ridicat-ilegal—272804?fbclid=IwAR2gt P6D1bbUa _jdbOmB0iy8qdUb2N5-42AEeFW_T0ePevWY81DWMH6-yM4.
Assoc. Prof., PhD, Cluj-Napoca Faculty of Law under “Dimitrie Cantemir” Christian University
Assist. Prof., PhD Cluj-Napoca Faculty of Law under “Dimitrie Cantemir” Christian University
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