Case Study — Brisc Legal Cluj, Judicial Partition of Land
Admission of the lawsuit seeking partition by court of an immovable asset (land) because some co-owners refused to exit co-ownership by mutual agreement. The exit from indivision in the requested form was necessary to prepare urbanism documentation required for approving a PUZ (Zonal Urban Plan) for building a real estate development.
Presentation of the Case: Partition of Land
In fact, a legal entity acquired two parcels in exclusive ownership for the purpose of constructing a housing complex. At the same time, it acquired a share (co-ownership) in a parcel designated as a private access road serving several properties. It is important that the parcels acquired by the company were located at the end of that access road.
Later, the legal steps needed to obtain a building permit were initiated.
It was determined that the zone where construction was intended was non-urbanized, and thus the building permit could not be obtained directly under the General Urban Plan (PUG). Accordingly, steps were taken to draft a Zonal Urban Plan (PUZ) to permit construction of the planned housing complex. Subsequently, the authority issued an Opinion of Opportunity (Aviz de Oportunitate) for preparing the PUZ.
In that opinion it was provided that, relative to the technical project of the housing complex and to respect applicable urban indices, placement of the complex could be done only perpendicular to the portion of the parcel designated as the road, from the parcels already in exclusive ownership by the company.
Taking Over the Case by Brisc Legal Cluj Attorneys
Given this factual situation, the company, represented by Brisc Legal attorneys specialized in judicial partitions, requested exit from indivision from the co-owners concerning the parcel designated as road. The request for exit from indivision was sent via judicial executor, the co-owners being summoned to appear before a notary to express their agreement to the partition exit. This was done because only by assigning to exclusive ownership the road-portion parcel adjacent to the company’s parcels could a building permit for the planned complex be obtained.
Requests for amicable exit from indivision were accepted only by some of the co-owners.
Due to refusal by other co-owners to partition amicably, a court action was filed.
Argumentation by Attorney Horațiu Brisc
Through the lawsuit, the company assisted by real estate attorneys requested that the court order partitioning of the road parcel by forming two lots, according to ownership shares in the title. One lot—namely the portion adjacent to the company’s parcels—should be awarded to the company in full ownership, and the second lot should comprise the remaining road portion to remain co-owned by the other co-owners.
Also, the company asked for registration in the land registry of the lot awarded. To issue such a ruling, a judicial expertise in topography and cadastre was requested to clarify objectives necessary for the court’s decision.
During the litigation, co-owners who opposed the exit from indivision argued that such partition would violate their right of passage (over the road in dispute) and that the parcel subject to partition is destined to become a public road, to be transferred to state ownership for harmonious urban development.
Solution of the Judicial Partition Case
Those arguments were completely dismissed by Brisc Legal attorneys (real estate partition lawyers Cluj), who demonstrated before the court that no co-owner would be harmed if the action were admitted as filed.
They also requested that co-owners who refused amicable partition be ordered to pay all judicial costs of the case.
Thus, the attorneys’ legal reasoning was validated by the Cluj-Napoca Court in its judgment.
The court found that with regard to the inadmissibility claim that by the partition the defendant’s right of passage would be affected, it holds that in the partition model requested there is no impairment of the defendant’s access right. The court further held that the defendant’s claim that the parcel is destined to become a public road is not substantiated, since the land registry extract shows it as private property of the parties and no proof was submitted that it is to be transferred to the state.
The court also upheld the request regarding judicial costs: the co-owners in opposition to exit from indivision were ordered to pay all court costs including stamp duty, the expert topographer’s fee, and the attorney’s fees.