CASE RELEVANCE
In the municipality of Cluj-Napoca there are numerous cases where individuals have built constructions without obtaining a building permit, and have consequently been sanctioned under the Contraventions law based on Law No. 50/1991, with application of a fine as the principal penalty and with complementary measures of immediate suspension of works and demolition of constructions erected without a building permit.
In such situations, separate from particular criticisms one might make of the contravention report depending on its contents and the factual situation (specific nullities, prescription of the finding of contraventions in construction, prescription of application of sanction, etc.), one should analyze the opportunity of a strategy aimed at achieving legal status for the illegally built construction, thereby avoiding application of the demolition measures.
SUMMARY OF THE FACTUAL SITUATION
In fact, by a contravention finding and sanctioning report, the owner of a plot in Cluj-Napoca, Valea Chintăului Street, was sanctioned for having carried out construction works of a single-family house on their land without a building permit. Based on the provisions of Article 26(3) of Law No. 50/1991 on authorizing construction works, republished, and taking into account the provisions of Article 21 of Government Ordinance No. 2/2001 on the legal regime of contraventions, the contravenient was imposed the principal sanction of a fine and the complementary measures of immediate cessation of works and destruction of the unauthorized construction works.
PROCEEDINGS BEFORE THE CLUJ-NAPOCA JUSTICE COURT
The landowner, as the claimant, filed a contraventional complaint at the Cluj-Napoca Justice Court seeking annulment of the contravention finding and sanctioning report and, subsidiarily under Articles 7 and 38 of Government Ordinance No. 2/2001, the replacement of the fine with the sanction of a warning.
The respondent, the Municipality of Cluj-Napoca through its Mayor, filed a response arguing for dismissal of the contraventional complaint as unfounded and, consequently, for upholding the contravention report as lawfully and properly drawn.
The Cluj-Napoca Justice Court dismissed the contraventional complaint, finding the legality and well-grounded nature of the drawn report. To reach this decision, the court of first instance grounded itself on the provisions of Article 26(6) of Law No. 50/1991 and on the provisions of Order No. 839/2009 for approving the methodological norms for applying Law No. 50/1991.
In this regard, the court of first instance determined that according to Article 26(6) and Article 35(3) of the law, in correlation with the provisions of Articles 28 and 29 of Government Ordinance No. 2/2001 on the legal regime of contraventions, with subsequent amendments, in the domain of discipline for authorizing the execution of construction works and their execution on the basis of an issued permit, the contraventional sanction of a warning cannot be applied.
The court also held that the claimant’s intent to come into legality (i.e., to regularize the unauthorized construction) is not a cause that can remove the illicit character of the act, considering the date when the act was discovered and the contravention report was drawn up, which confirms the commencement of building works in conditions where the legal requirements were not met.
Against the decision of the Cluj-Napoca Justice Court, the claimant filed an appeal, requesting primarily that the appeal be granted, with the consequence of annulment of the contravention report, or subsidiarily the replacement of the fine sanction with the sanction of warning, or reduction thereof, simultaneously with the replacement of the complementary sanction of demolition of the works executed without a permit with the measure of entering into legality.
PROCEEDINGS IN THE APPEAL PHASE, AT THE CLUJ TRIBUNAL
The appellant engaged Brisc Legal’s urbanism and construction lawyers at the appeal phase, establishing a different procedural strategy compared to the approach at first instance, the intention being first of all to avoid application of the complementary measures of demolition, in hope that the local administration would take measures to ensure legalization of all buildings erected without permit in the Valea Chintăului area of Cluj-Napoca.
The Brisc Legal lawyers decided that it was appropriate to raise a constitutional exception with respect to the provisions of Article 28 paragraphs (1) and (2) and Article 32 paragraph (1) of Law No. 50/1991 regarding authorization of execution of construction works, in relation to Article 1 paragraph (5) of the Constitution of Romania, Articles 53 and 44 paragraph (1) of the Constitution, and requested suspension of the proceeding until the Constitutional Court rules on this exception. Consequently, in the appeal phase, the Cluj Tribunal referred the matter to the Constitutional Court of Romania and, given that the ground for review provided in Article 509 paragraph (1) point 11 of the Civil Procedure Code would not constitute an effective remedy in view of the immediate enforcement of the demolition measure, it ordered suspension of the judgment.
By this strategy, although no direct success is obtained in the case submitted, unauthorized constructions will not be immediately affected by the demolition measure.
Thus, the possibility remains for legalization as a result of actions by the local administration intended to treat globally and uniformly the situation of these constructions, through urbanization of the area following extension of the built-zone (intravilan), adoption of zonal urban plans, or modification of construction regime.
Ultimately, demolition of an unauthorized construction must be admitted only in the hypothesis in which it is a measure proportional to the pursued purpose and the protected interests, and must not in any way prevail over the measure of entering into legality.
Furthermore, the conduct of the local administration that, for a long period, by passivity, encouraged construction in Valea Chintăului without building permits, generated among individuals a legitimate expectation that they will be able to protect and valorize their private property rights with respect to these constructions.