The fate of constructions built without a building permit

This article aims to provide a brief overview of the antithetic legal relationship between the right to private property and the obligation to demolish constructions built without or in violation of a building permit. It also examines the consequences that co-ownership can have on the possibility of obtaining the demolition of such a construction.

Additionally, it seeks to review the implications of erecting a construction in contravention of legal provisions, particularly regarding the ability to register ownership rights over the construction in the land registry.

The right of private ownership over constructions

The right of private ownership, in general, is defined under article 555 of the Civil Code as the prerogative of its holder to possess, use, and dispose of an asset exclusively, absolutely, and perpetually, within the limits established by law.

The connection between property rights and constructions

Regarding the property rights over a construction, it has the particularity of being essentially dependent on the property rights over the land on which the construction was built. This is because the construction is an accessory to the land, materialized through the incorporation of building materials into the land.

Thus, the right of private ownership over a construction arises as a result of its construction and progresses as the construction takes place, following the legal regime of the land on which the works are carried out.

In this regard, the law – article 577 of the Civil Code – establishes that any construction made on a property generally belongs to the owner of that property. Specifically, the right of ownership over the work, carried out by the landowner with their own materials or those of another, arises from the moment the work begins and progresses as the work is completed. A (relative) presumption operates in favor of the landowner, assuming that the work was carried out at their expense and that it belongs to them.

Indivisibility of Property Rights over Land and Constructions

Even in cases where the right of ownership over a construction is transferred through sale or similar agreements, or where it is acquired by another person in any other manner provided by law, the right over the construction cannot be separated from the right over the land. The construction will always be acquired together with the land on which it is built, with the new owner of the construction also holding the property right over the land or at least a real right of superficies over it.

Similarly, the acquirer of the property right over the land will also acquire the right to all accessory goods existing or that would be built on the land, unless there is a stipulation to the contrary, i.e., in the absence of the establishment of a right of superficies in favor of the original landowner.

Various Forms of Ownership and Their Implications

Regarding the forms of ownership, it can be either individual or joint. In the latter case, we distinguish between ordinary co-ownership in undivided shares, forced co-ownership, and common ownership in undivided shares. A characteristic of common ownership forms, relevant for the analysis to be made in this article, is that the right to dispose of the property, as part of the ownership right, cannot be exercised for the purpose of extinguishing the ownership through the demolition of the construction without the unanimous agreement of all co-owners. The elimination of the right of one or more co-owners cannot be the prerogative of the other or other co-owners.

Illegal Constructions and Their Impact on Property Rights

The legality or illegality of a construction is assessed in relation to the building permit.

According to Article 1, paragraph (1) of Law no. 50/1991 on the Authorization of Construction Works, “The execution of construction works is only permitted based on a building or demolition permit, issued under the provisions of this law, at the request of the holder of a real right over a property—land and/or buildings—identified by its cadastral number, unless the law provides otherwise.”

Thus, we refer to a construction as illegal when it has been built without obtaining a building permit in accordance with the law. Now, find out how long you have before you can be sanctioned for building without a building permit.

Also, a construction will be considered illegal if a building permit was obtained, but the construction was carried out in violation of the terms of that permit.

Finally, a construction, whether completed or not, will be illegal if, although a building permit was obtained and adhered to, it was later canceled by a final, binding court ruling.

Effects on Property Rights

The issue of whether the construction was built legally or illegally does not affect the creation of the property right in the landowner’s estate; it only impacts the owner’s ability to dispose of the property right over the construction. In fact, even when the construction is built based on and in compliance with the building permit, the right of ownership still arises as a result of the incorporation of materials into the land.

Registration of Property Rights in the Land Registry

Although the property right exists, in order for it to be legally exploited in its entirety, the law requires certain additional formalities, such as the registration of the property right in the Land Registry of the land.

According to Article 36, paragraph (1) of Law no. 7/1996 on the cadastre and real estate publicity, “Notarial acts through which a real estate right is transferred, modified, created, or extinguished are concluded only if the real estate is registered in the land registry, except for the cases provided in article 887 of the Civil Code” (which essentially refers to real rights arising from inheritance, natural accession, forced sale, or expropriation).

According to Article 37, paragraph (1) of Law no. 7/1996, “The right of ownership over constructions is registered in the land registry based on a certificate of attestation issued by the local authority that issued the building permit, confirming that the construction was carried out in accordance with the building permit and that there is a minutes of acceptance upon completion of the works, as well as compliance with other relevant legal provisions and cadastral documentation.”

Decision of the High Court of Cassation and Justice

In the context where Article 37, paragraph (1) of Law no. 7/1996 does not explicitly prohibit the possibility of registering the right of ownership in another way than based on a building permit, there have been numerous requests in the national courts aiming to obtain a judicial decision acknowledging the existence of property rights over constructions based on the fact that these constructions were built by the landowners. This situation led to inconsistent case law on the matter.

As a result, on April 8, 2019, the High Court of Cassation and Justice issued Decision no. 13/2019 in a recourse in the interest of the law, according to which:

“The lack of a building permit or non-compliance with its provisions, as well as the absence of the minutes of acceptance upon completion of the works, constitute obstacles to the judicial recognition, in the framework of a declaratory action, of the property right over a construction built by the landowner using their own materials.”

Thus, the rule in this area is that registering the property right over a construction built illegally in the land registry is not possible, even if the property right exists, since covering the illegality through judicial means by obtaining a decision recognizing the desired right to be registered is not admissible.

Particular Situations and Exceptions

However, there are certain exceptional situations in which registration in the land registry will be possible even in the absence of the certificate of attestation confirming that the construction was carried out in accordance with the building permit and that there is a minutes of acceptance upon completion of the works:

• Article 37, paragraph (2) of Law no. 7/1996: Constructions built before August 1, 2001, can be registered in the land registry in the absence of a building permit, based on a fiscal certificate proving the payment of all tax obligations owed to the local public administration authority in whose jurisdiction the construction is located, as well as the cadastral documentation.

• Article 37, paragraph (6), second sentence of Law no. 50/1996: In the case of constructions where the works were carried out (after August 1, 2001) without a building permit, and the expiration of the statute of limitations provided under Article 31 (a three-year period starting from the actual completion of the works) no longer allows for the application of contravention sanctions, the certificate of attestation or certificate confirming the construction will be issued based on a technical expertise regarding compliance with the fundamental requirements concerning construction quality, including compliance with approved urban planning regulations, confirming the current situation of the construction and adherence to legal provisions and cadastral documentation. If the technical expertise reveals non-compliance with all fundamental requirements and urban planning regulations, the certificate of attestation or certificate confirming the construction will not be issued.

Obligation to Demolish Illegally Built Constructions

The obligation to demolish a construction may arise in cases where it was built illegally, but this obligation does not arise at the moment of and by virtue of the illegal construction itself.

The obligation must be established, upon request, by a court through a final and binding ruling.

This is also applicable in situations where the illegal construction was identified and sanctioned through a contravention report under the provisions of Law no. 50/1991, which included the complementary sanction of bringing the construction into compliance with the law or demolishing it within a period specified in the report.

Prescription Period and the Decision of the High Court of Cassation and Justice

The mere passage of the term set by the authority that applied the contravention sanction does not automatically create the obligation to demolish the construction, as established by the High Court of Cassation and Justice in Decision no. 10/2021, issued on June 21, 2021, in a recourse in the interest of the law. The Court ruled that the term granted in the contravention report is merely a recommendation.

Thus, the expiration of the term set in the contravention report only marks the beginning of the right of the competent public authority, according to the law, to request the court to impose the demolition obligation on the person sanctioned. The immediate consequences of this ruling are, on one hand, that the prescription period of 3 years begins to run within which the public authority must exercise its right to act, and on the other hand, that until a final judicial decision is issued imposing the demolition obligation, the property owner may still take steps to bring the construction into compliance with the law. Such actions cannot (legally) be obstructed by the public authority simply because the term set in the contravention report has expired.

Procedure for Establishing the Obligation of Demolition

Returning to the procedure for establishing the obligation of demolition, this can be instituted following a request made:

1. On the grounds of civil tort liability by the injured party as a result of the property owner’s illegal construction.

In this judicial procedure, the plaintiff must prove not only the existence of an unlawful act but also the presence of fault (guilt) and the harm (damage) suffered as a result of the construction that is being requested to be demolished.

While the proof of the unlawful act consists in the existence of a construction built without a building permit, the fault and the damage require further consideration.

• Fault: In cases where the construction’s illegality arises from the cancellation of the building permit, the property owner is generally not at fault, as they reasonably relied on the legality and validity of the administrative act issued in their favor.

• Damage (Prejudice): The plaintiff has the burden of proving the existence and extent of the damage they suffered due to the illegal construction. This damage cannot be removed in any way other than by demolishing the construction. Simply the fact that the construction was carried out without a building permit does not, by itself, prove the existence of damage. Furthermore, proof of urban planning violations does not automatically prove the existence of damage.

2. Under the provisions of Article 32 of Law No. 50/1991, by the authority that applied the contravention sanction through the contravention report for construction violations.

According to Article 32, paragraph (1) of Law No. 50/1991: “If the persons sanctioned have stopped the execution of the works but have not complied within the term established in the contravention report, in accordance with the provisions of Article 28, paragraph (1), the authority that imposed the sanction shall refer the case to the courts to decide, as the case may be: a) bringing the works into compliance with the provisions of the permit; b) demolition of illegally constructed works.”

This procedure emphasizes the possibility of judicial intervention in the event of non-compliance with the contravention report’s terms, including the option for the court to order demolition.

Will filing the claim for judicial action lead to the demolition of the construction?

It depends, distinct from other aspects related to procedural rules and even material legal norms that are not the subject of this analysis, on the defendant’s private property rights over the construction.

The Title of Ownership in the Context of Demolition

The person against whom the demolition of an illegal construction is requested must be the holder of the ownership right over it, which is not always the same person who actually uses the construction, the person who executed the construction works, or even the person who was sanctioned contraventionally.

The defendant in the action aimed at obtaining the demolition of a construction must be the holder of the ownership right over the land (or the holder of the superficies right), as, as we have already seen, they are presumed to also be the owner of the construction, the holder of the attribute of disposal, the only one who can be obliged to exercise their right by disposing of the property through its demolition.

Implications in the Case of Co-owners

In the event that there are multiple co-owners of the land, all of them must be parties in the lawsuit and be obligated to demolish the construction; it is not sufficient to obtain a court decision only against one of the co-owners.

This is because the demolition of a construction cannot occur within the limits of the co-ownership rights of one or some of the joint owners, just as the attribute of disposal cannot be exercised (voluntarily or forcefully) by one or some of the co-owners on behalf of the others.

In cases where the obligation to demolish is requested under Article 32 of Law no. 50/1991, the defendant’s ownership status alone is not enough to obtain demolition; it must also be coupled with the status of a person sanctioned contraventionally.

Interpretation of Legal Provisions Regarding the Obligation to Demolish and Contravention Sanctions

Although Article 26(1) of Law no. 50/1991 establishes as a contravention the act of “executing… either totally or partially, works without authorization… by the investor or executor,” with the consequence that a contravention report can be drawn up against the investor or executor who is not the owner, and these parties may be required to pay fines, we believe that the obligation to demolish can only be imposed on the investor or executor who has the status of owner of the construction.

The provisions of Article 32(1) of Law no. 50/1991 are clear in that their applicability occurs when the person sanctioned for contravention fails to comply with the sanctions established in the contravention report. Given that contravention liability is personal, for the individual’s own wrongful act, it cannot be accepted that the contravention sanction, which is established and applied based on the contravener’s actions and conduct, can be extended to another person, the property owner, who was not sanctioned for the contravention and in whose case no wrongful act was found.

In the situation where there are multiple co-owners, for reasons of legal consistency, all of them must be parties to the process, and all of them must also have the special status of being contraventionally sanctioned for the act of illegally constructing the building whose demolition is being sought.

Furthermore, the obligation to file a claim aimed at obtaining the demolition of a construction in opposition to its owner, including all co-owners, also results from the specific effects of the court’s decision. Thus, although the final court decision is enforceable against third parties who did not participate in the procedure, its binding effect is relative, operating only between the parties involved in the case.

Perspective of the Sălaj Court

Regarding this matter, the Sălaj Court expressed itself particularly clearly, justifying its position in the reasoning of Civil Decision no. 727/2020, which states:

“The enforceability of a court decision means that the party who lost the claim, namely the one condemned by the decision to give, do, or refrain from doing something, is required to comply with the decision voluntarily, and if not, the creditor can obtain enforcement through the enforcement procedure. The enforceability of the court decision stems from its obligatoriness between the parties, in the sense that they and their successors are bound to abide by the effects of the res judicata and to act accordingly.

On the other hand, the relativity of the court decision means that the judicial act produces its substantive effects—modifying the legal situation by applying the rule of law to the factual circumstances—only between the parties to the dispute and their successors, and it cannot create rights or obligations concerning third parties who were not involved in the case.

… The enforceability of the decision does not imply extending its binding effects to third parties. These third parties will respect the decision only indirectly, as a change in the legal order created between the parties involved. However, the decision will have no direct effects on third parties, meaning that no rights or obligations arise from the decision for them.

Therefore, since the appellant was not a party in the dispute that was definitively resolved… it follows that this decision cannot create any direct obligation upon them that could be enforced. … What remains significant and undisputed is the fact that the decision on which enforcement is based is unenforceable against the appellant and does not constitute an enforceable title against them, yet it is directed against one of their assets.”

Conclusion

In conclusion, the complex relationship between property rights and constructions built illegally or without complying with building permits requires solid legal expertise to successfully navigate the challenges of this field.

Our team of construction law experts is ready to provide you with the necessary assistance. With a deep understanding of the complexities of property and construction laws, we are here to guide you through legal processes, provide relevant information, and best represent your interests.

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