Relevant Factual Background
The dispute concerns the plaintiffs’ access to a public road via “A Street” in the Dâmbu Rotund area of Cluj-Napoca, urbanistically regulated by a Zonal Urban Plan (PUZ) approved through City Council Decision (HCL) no. 524/2007. To create the 5 m-wide profile of Alley “A,” courts have previously and definitively ruled that the adjacent landowners (the parties) are obligated to subdivide their original plot to ensure the full 5 m width.
In this case, the parties only subdivided 2.5 m, omitting to subdivide the remaining portion, and left installations on this 2.5 m that obstruct the road’s continuity. The plaintiffs obtained construction permits (in 2016) for their properties, demonstrating access via a subdivided road on their land; however, access to the public street remained impossible without the parties completing the full subdivision of the remaining 2.5 m necessary for the 5 m profile. The parties were notified to appear before a notary to express agreement for arranging the road and to complete technical subdivision documentation, but they refused.
The parties’ defenses—including alleged lack of interest due to presumed expiry of the plaintiffs’ permits, inapplicability of the PUZ, or the possibility of reconstructing traffic directions—were dismissed as irrelevant in light of the nature of the subdivision obligation established by the PUZ and reaffirmed by another final court decision of the Cluj Court of Appeal.
The court found that an administrative servitude of access exists (measuring 2.5 m in width by 15.85 m in length) on the parties’ property. It ordered the parties to: (i) subdivide the indicated area, (ii) register the parcel with the purpose of “road” in the land registry under the owners’ names, (iii) issue a notarial consent for construction/road arrangement—consent that is replaced by the court ruling in case of refusal.
“Res Judicata Authority” vs. “Exception Based on Res Judicata Authority”
The court correctly distinguished between:
- Exception of res judicata authority (negative effect – prevents a second judgment when the same parties, object, and cause recur); and
- Binding force (presumption) of res judicata (positive effect – the obligation of the current court to follow prior rulings on related issues).
The previously resolved issues—namely the imperative of the 5 m profile for Alley “A” and the parties’ obligation to subdivide—bind the current court, which cannot admit defenses conflicting with those earlier determinations.
Legal Qualification: Administrative Servitude and Urbanistic Real Obligation
The court classified the subdivision obligation as an administrative servitude instituted under urban planning law (PUZ – HCL 524/2007), carrying legal authority and serving public interest (a composite of private property interests integrated with an overarching interest in functional circulation).
The private nature of the land does not preclude the servitude. On the contrary, an administrative servitude exists precisely to legally limit private property rights in the public interest, in accordance with civil law Article 602 and the definition of public utility servitude in Law 350/2001.
Government Emergency Ordinance 43/1997 – Road Regime: Public vs. Private Roads
The court emphasized that the portion to be subdivided will be designated as a road and may be opened to circulation under OG 43/1997 (Articles 3–4). Even if the land remains privately owned, the road may be opened to public or private traffic, depending on urbanistic configuration and applicable regulations.
Summary of the Ruling
- The court confirmed the establishment of an administrative servitude of access to the public road for the non-subdivided portion (2.5 m × 15.85 m), according to the PUZ (HCL 524/2007).
- It ordered the parties to: (i) subdivide that portion; (ii) register it in the land registry with the purpose “road”; (iii) issue a notarial consent for construction/road arrangement—substituted by court ruling if refused.
- The parties’ defenses (permit expiry, altered traffic directions, supposed inapplicability of the PUZ due to the new General Urban Plan of Cluj-Napoca) were dismissed as irrelevant in view of res judicata and the nature of the statutory obligation.
Applicable Legal Texts
- Article 35, Civil Procedure Code – Declaration of existence or non-existence of a right: A person with interest may request the court to ascertain whether a right exists; the request is not permissible if the right can be enforced through another legal avenue.
- Article 1528, Civil Code – Enforcement of an obligation to do:
(1) If a duty to do is not fulfilled, the creditor may perform it at the debtor’s expense;
(2) Unless in delay by law, the creditor may exercise this right only if the debtor is notified in default or afterward. - Articles 430–432, Civil Procedure Code – Authority and effects of res judicata, and exception based on res judicata: These define how prior judicial decisions are binding and what exceptions apply.
- Article 602, Civil Code – Public and private interest: Law may limit property rights in the public or private interest; these limits may be modified or removed by mutual agreement, with public notice required for effectiveness against third parties.
- Law 350/2001 – Definition of “public utility servitude”: A burden imposed on one property for the use and utility of another property owned by someone else; protective measures may be enforced unless revoked by urbanistic documentation.
- OG 43/1997, Articles 3–4 – Classification of roads by destination and by circulation: distinguishes public roads (public property, open to traffic) and private roads (used for access, managed by private stakeholders); discusses roads open or closed to public circulation.
Specifics of Administrative Servitude for Public Road Access (with Practical References)
Legal Source, Nature, and Basis
- Legal basis: PUZ approved by HCL (urban regulations) + public interest (functional street network, ensuring access through private properties).
- Nature: A legal limitation on private property rights (Article 602 CC), binding on the property owner.
Relationship with Public vs. Private Property
- Servitude does not require public land—it is typically imposed on private land to ensure urban circulation.
- OG 43/1997 allows private utility roads to be open to public traffic under nondiscriminatory conditions.
Practical Effects for Owners in Developments / Subdivisions
- Real obligations: subdivide and register as road (even if privately owned), with access open to public or private traffic per PUZ/HCL.
- Non-compliance may trigger judicial measures: acknowledgment of limitation on property rights, obligation to perform physical/legal acts, and court-substituted consent.
Conclusion
The ruling reinforces a clear jurisprudence: urban planning obligations established by a PUZ—specifically, maintaining a 5 m alley profile—give rise to administrative servitudes. These represent legal limits on property rights whose non-compliance can be enforced by beneficiaries. Even in the absence of public ownership, the road must—and legally may—be ensured through subdivision and official registration, to uphold public interest in urban circulation and property access.