The recent changes made by Law no. 7 of the 6th of January 2020 to article 37 paragraph (6) of Law no. 50/1991 regarding the authorisation of construction works brought into question the possibility of registering in the Land Registry the property right regarding the constructions built without authorisation or without observing such permit.
The Costaș, Negru & Asociaţii Lawyers’ Civil Partnership team has analysed the new legal framework and is able to issue some preliminary conclusions in relation to the legislative structure and the practical guidelines known so far.
As a matter of principle, we wonder if this recent legislative amendment is bound to encourage an illegal practice, namely the construction without a building permit, without specialised projects, with an impact not only on the real-estate fund, but also on the public safety, as long as the constructions do not meet the requirements of quality imposed by law. Analysing the conditions laid down in article 37 paragraph (6) of Law no. 50/1991, as amended, regarding the registration in the Land Registry of the constructions built without an authorisation / without observing the building permit, we consider that such a concern is not justified, since these conditions come as quite restrictive. Consequently, the legal provision ”enjoys” a quite restricted applicability.
Article 37 paragraph (6), in its current structure in force since the 11th of January 2020, states as follows: ”The property right over the constructions is inscribed in the Land Registry based on an ascertaining certificate meant to confirm that the construction was carried out in accordance with the building permit and that there is a report on the reception of the project at the end of the construction process, or, as the case may be, a certificate / an ascertaining certificate for the construction. In the case of constructions for which the execution was carried out without a building permit, and the fulfilment of the limitation period provided for in article 31 no longer allows the application of sanctions, the ascertaining certificate / certificate regarding the construction will be issued based on a technical expertise regarding the compliance with the applicable fundamental requirements regarding the quality in constructions, including the compliance with the approved urban planning regulations, meant to confirm the current situation of the constructions and their compliance with the relevant provisions, as well as based on a cadastral documentation. In the case in which the technical expertise finds that not all of the fundamental requirements and those regarding the compliance with the urban planning regulations are not met, the ascertaining certificate / certificate regarding the construction is not issued”.
The conditions envisioned by the legislator in order to allow the registration in the Land Registry of the property right over constructions carried out without a building permit are the following:
- the fulfilment of the limitation period provided for in article 31 no longer allows the application of sanctions;
- issuing an ascertaining certificate / a certificate regarding the construction.
Concerning these two conditions, the following observations can be made:
- Fulfilment of the limitation period provided for in art. 31 no longer allows the application of sanctions
Article 31 of Law no. 50/1991 states that: ”The right to establish the contraventions and to apply the fines provided in article 26 shall be prescribed within 3 years from the date when the deed has been committed.”. At this moment, there is no unitary practice regarding the date from which this limitation period starts. In the courts’ practice, there is no unanimity regarding whether this date coincides with the last illegal act of construction or with the date of the conclusion of the report on the reception of the project at the end of the construction process.
Thus, starting from the provisions of article 37 paragraph (5) of Law no. 50/1991 which state that, in the absence of a valid reception, the construction is not considered completed, corroborated with the provisions of the second thesis of article 13 paragraph (2) of the Government Ordinance no. 2/2001 according to which the contravention is continuous in the situation in which the violation of the legal obligation lasts in time, some courts (for instance, see the Cluj Tribunal, Judgment no. 772/14.05.2019, Judgment no. 879/29.05.2019, the Dolj Tribunal, Judgment no. 2224/03.12.2019) consider that, in the absence of the report on the reception of the project at the end of the construction process, the limitation period for the contravention liability does not start to run. On the same page, by Decision no. 806/16.05.2019, the Cluj Tribunal noted that ”the special limitation period does not begin from the date the deed was committed, but from the date of the completion of the construction, a situation that does not only mean the material fact of the cessation of the construction, but also implies the reception of the construction. In this case, the sanctions continue to apply, the said construction must be considered as still being carried out considering that, in the present case, there was no reception, which is why the date of the contravention coincides with the date of its finding by the investigating officer”.
At the same time, there are courts (see, for example, the Sibiu Tribunal, Judgment no. 1131/19.12.2019, the Iași Tribunal, Judgment no. 1606/18.12.2019, the Bistrița-Năsăud Tribunal, Judgment no. 909/12.12.2019, the Călărași Tribunal, Judgment no. 1057/17.12.2019 etc.) that consider that the limitation period for the application of fines in the case of constructions carried out without a building permit starts to run from the date of the material completion of the construction, not from the date of the report on the reception of the project at the end of the construction process. In this respect, the Cluj Tribunal, in Judgment no. 1328/24.09.2019, notes that ”the contravention in the field of constructions has a certain specificity, in comparison to other types of contraventions, in the sense that it is not consumed instantaneously, but has a unfolding in time, in stages of the construction, the offender committing the act from the beginning of the construction until its completion. Nonetheless, in relation to this specific way of committing the deed, which gives it a continuous character – as regulated by article 13 paragraph (2) of the Government Ordinance no. 2/2001, the contravention must be considered to be committed throughout the construction of the building, so that it can be sanctioned from the beginning of the construction until its completion, and, in the case of the completed construction, until the end of the limitation period specified in article 31 of Law no. 50/1991.” With reference to the legal provisions mentioned above and to Decision no. 7/2000 of the High Court of Cassation and Justice in an appeal on a point of law, the court considers that in the case of ongoing constructions, the date of committing the deed is the date of the finding of the contravention, while in the case of completed constructions, the deed is considered committed when the construction is completed. It is further shown that ”At the same time, it is necessary to consider a logical and systematic interpretation of the provisions of article 37 paragraph (5) of Law no. 50/1991, republished, in the sense that, in the case of such constructions, which are therefore not considered completed and cannot be registered in the Land Registry, the sanctions may be applied only during the limitation period provided by article 31 of the same law, a contrary interpretation, in the sense of ascertaining an imprescriptibility of the contravention in question, not being in accordance with the principles governing the matter of liability in general and would lead to the ignorance of article 31 of the law, which would thus have no legal relevance.”.
At the same time, by Judgment no. 2032/05.12.2018, the Cluj Tribunal considered that ”the moment of completion cannot be linked to that of the reception of the construction by the representatives of the local administration. Such an interpretation would practically lack the effects of article 31 of Law no. 50/1991’s provisions, as the reception of the construction cannot take place without the building permit, which would mean that the commission of the contravention could be found at any time, giving rise to a contravention that is never prescribed, such an interpretation disregarding the legal effects of the provisions regarding the prescription included in Law no. 50/1991 and the Government Ordinance no. 2/2001.”.
We note that the judicial practice is divided not only between the national courts but also between the juries of the same court.
In accordance with the second approach, we consider that the date of the deed should be analysed by reference to the date of the execution of the construction, respectively the cessation of the construction acts and not the date of the conclusion of the report on the reception of the project. As long as the conclusion of the reception report with the participation of the representatives of the local authority is possible only in the presence of a building permit, in the case of constructions carried out without a building permit it could never be completed, which would lead to the imprescriptibility of the contravention. In these conditions, the provisions of article 37 paragraph (6), introduced recently in Law no. 50/1991, according to which ”in the case of constructions for which the execution was carried out without a building permit, and the fulfilment of the limitation period provided for in article 31 no longer permits the application of sanctions” would be totally inapplicable. Nevertheless, establishing a limitation period for contraventions according to article 31 of Law no. 50/1991 also pursues a sanction for the passivity of the authorities with powers of control that tolerate the construction without an authorisation / without observing the building permit and that do not take measures for sanctioning offenders. If we were to adhere to the first approach, it would mean that the offenses provided by article 24 of Law no. 50/1991 could be ascertained at any time in the absence of the reception report, the latter being impossible to obtain in the absence of the building permit. We cannot help but wonder if the social danger of the deed still exists after the passing of a significant number of years from the date of the construction’s completion.
The applicability of article 37 paragraph (5) of Law no. 50/1991’s provisions can be analysed in the context of the acquirement of the property right on the construction and of this right’s registration in the Land Registry, the legal text rather aiming to ascertain the impossibility of registering a construction carried out without a building permit [otherwise than under the conditions regulated by article 37 paragraph (6)] and not determining a starting time for the running of the limitation period of the contravention.
- Regarding the issuance of a certificate of attestation / certificate regarding the building construction
From the wording of the legal provision, it is clear that in order to obtain the ascertaining certificate / certificate regarding the construction, a technical expertise must be prepared meant to certify, on the one hand, the compliance with the fundamental requirements regarding the quality in constructions, and, on the other hand, the compliance with the approved urban planning regulations. In addition, a cadastral documentation must also be arranged.
If the compliance with the quality requirements and the drawing up of the cadastral documentation should not pose significant issues, the condition of observing all the urban planning regulations will significantly restrict, as far as we are concerned, the application of the provisions of article 36 paragraph (6) of Law no. 50/1991, the thesis referring to the constructions built without authorisation / without observing the building permit.
It is our appreciation that, to the extent that the construction complies with all the applicable urban planning regulations, the owner of the land would have already taken steps in order to legalise the construction and in order to register it in the Land Registry. Usually, the constructions executed without an authorisation or without observing it do not comply with the urban planning rules applicable in the area, as it is impossible to obtain an authorisation, this fact precisely generating the infringement of the law. Most likely, the legal provisions will find their application in case of changes within the urban planning regulations, for example, following the updating of the towns and cities’ general urban plans.
Even if we anticipate a limited application of the legal provision, some observations can be made regarding the carrying out of the technical expertise:
- The legal text does not clarify whether this expertise should be carried out by a single expert or is in fact an expertise collection in different fields;
- If we take into consideration the list of experts certified by the Ministry of Public Works and Administration when assessing the compliance with the quality requirements in constructions, we ask ourselves who is entitled to carry out an expertise regarding the compliance with the urban planning regulations – any architect registered in the Romanian Chamber of Architects or any urban planner registered in the Romanian Register of Urban Planners or only the judicial experts in these fields (70 judicial experts are specialised in national architecture);
- Can the compliance with the urban planning rules be analysed by a judicial expert in the field of architecture or only in the field of urban planning? We ask ourselves this question since, at this particular moment, there is no judicial expert in the field of urban planning.
Surprisingly, the issuance of the ascertaining certificate / certificate regarding the construction is not conditioned by the payment of the specific fee for obtaining the building permit and the share due to the State Inspectorate in Construction for covering the expenses of the state’s control in the planning of the territory, urban planning and authorising the execution of the construction works, as well as the regulation in the field of urban planning, amounts that are paid and adjusted according to article 37 paragraph (3) and (4) of the law in case of construction under building permits.
In these circumstances, we consider that the application of the provisions of article 37 paragraph (6) of Law no. 50/1991 regarding the authorising of construction works, beyond the fact that it will be extremely restricted mainly due to the failure to obtain the ascertaining certificate / the certificate regarding the construction due to not observing all of the urban planning regulations, will also generate a non-unitary practice, not to call it discriminatory, depending on the interpretation of the phrase ”date of committing the deed” and on the way of calculating the limitation period.
The Urbanism and Construction Authorisation area of practice within the Costaș, Negru & Asociaţii Lawyers’ Civil Partnership is coordinated by Atty. Florina Virginia Negru. The Costaș, Negru & Asociaţii Lawyers’ Civil Partnership offers both consultancy in matters of urban planning and construction authorisation, as well as legal assistance and representation in administrative and judicial proceedings in the same field.