Case Study Real Estate Attorney Cluj: Achieved Objectives
The administrative courts in Cluj-Napoca held that introducing a restriction in the General Urban Plan (PUG) that requires transferring a portion of one’s land due to a public road easement (servitude) is an abuse when the authority fails to expropriate the land in question; it violates the right to private property.
For these reasons, the Cluj Tribunal ordered the municipality to expropriate 87 square meters of land encumbered by the easement and to pay fair compensation to the claimants.
Case Study of Expropriation of Land: Presentation and Explanation of Fault
The claimant, “A,” submitted technical documents to obtain a building permit, based on an urbanism certificate which included as a restriction the existence of a public utility easement over the land subject to authorization, affecting 87 square meters.
The public utility easement was established via the PUG and meant widening the street profile in the area to 16 meters; that implies using a portion of the claimant’s land for a public access road (carriageway + sidewalk).
The Cluj-Napoca City Hall conditioned the issuance of the building permit on transferring the respective land area into public domain.
Although the claimant subdivided the portion affected by the easement in anticipation of a sale or expropriation by the municipality, the easement situation was never properly regulated. In practice, in Cluj-Napoca there was a precedent of authorities demanding donation (free transfer) of lands affected by easements to receive a building permit.
Additionally, the authority’s abuse was accentuated by the fact that widening the street to 16 meters was an illusion since buildings built before the old PUG would have had to be demolished to satisfy that requirement in all neighboring plots.
Presentation and Support of the Case by the Attorney
Key points:
- The court considered that the Cluj-Napoca Mayor’s refusal to issue the building permit was unjustified.
- It was found that at the level of Cluj-Napoca the authorities were conditioning the issuance of building permits on the transfer of land affected by a public utility easement.
- Unlike another similar case, the court found that by approving the new PUG the authorities did not declare public utility of the street-widening project, but merely created the premise/desire for it, leaving it to the municipality to carry out the legal process under Law no. 255/2010 to declare public utility and expropriate the land with fair and compensatory payment.
- The court held that the discretionary capacity of the authority to carry out expropriation makes the PUG condition of street layout into a purely potestative condition, which is abusive; it leads to an unjustified refusal to grant the building permit.
- Also, the court considered that the inactivity of the authority about transferring the encumbered land produces uncertainty incompatible with respecting the right of private property.
Construction & Land Attorney Cluj: Outcome After Arguing the Case
The authority’s conduct was seen as a disguised attempt to force the owner to give up their land for free in favor of the municipality.
Thus, the claimant, represented by a Cluj-based urbanism attorney, obtained a court order obliging the Cluj municipality to initiate and finalize the expropriation procedure for public utility under Law no. 255/2010, paying fair and prior compensation for the 87 square meters.
The Cluj Tribunal’s decision was appealed by the Cluj local administrative unit and the Mayor of Cluj-Napoca, Emil Boc.
Cluj Court of Appeal Decision
The Cluj Court of Appeal rejected the appeal and maintained the Cluj Tribunal’s solution in its entirety.
The Court held that the way the authority interpreted normative acts was arbitrary, comparing also with earlier communist-era legislation where expropriation was done and compensation was given for expropriated property, even if modest.
The Court saw that affecting private property via a public utility servitude established through urban planning documentation (approved by an administrative act) without properly declaring public utility and without expropriation with compensation is contrary to constitutional provisions (Art. 44) and Civil Code (Arts. 617, 625).
Also, conditioning issuance of a building permit on free transfer of land for public domain in favor of the municipality entails elements that deny rule of law and limit citizens’ rights.
Street-width requirements in the General Urban Plan must be correlated with other legal provisions; it is not permissible to force expropriation without compensation of land just because the administrative unit has no budget allocated for that.