Relevance of the Case
Many provisional injunctions in practice aim to require the defendant to stop construction works until the court of first instance issues its final ruling—actions mainly initiated by neighbors affected by those works.
To issue such an order, the cumulative conditions set out explicitly in the Civil Procedure Code must be met: the existence of a legal appearance (apparența de drept) in favor of the claimants; the prevention of imminent and irreparable damage; the urgency of the requested measure; and that the case’s merits have not yet been decided or the measure is temporary.
Stopping construction works, even for a short period, can cause serious harm to the property of the building owner where the works are being done. That is why such injunctions must be requested only when the legal conditions are strictly fulfilled; granting them tends to be exceptional.
Summary of the Facts
In reality, the defendant, represented by Brisc Legal lawyers, carried out construction works at an apartment in a residential complex located on Traian Street, Cluj-Napoca: specifically, a series of modifications in the ground floor and basement, spaces that belong to the defendant. The defendant began carrying out these construction works in May 2023.
The claimants alleged that the works were carried out without obtaining a prior building permit and that their execution would negatively affect the strength and stability of the building, causing damage to the structure of the residential complex and the other residents.
PROCEEDINGS ON THE MERITS, BEFORE CLUJ-NAPOCA JUSTICE COURT
By filing a request for a provisional injunction registered on the docket of the Cluj Tribunal, the claimants sought an order obliging the defendant to stop any building works carried out in the common or/or private parts of the building.
The claimants argued, essentially, that some works were already underway, and that the works already carried out and those to be carried out would irreversibly affect the structure of the residential building in which the disputed apartment is located.
The defendant, through its real estate and construction lawyers, asked for the request to issue the injunction to be rejected—denying the claimants’ requested suspension of works in relation to the apartment at issue—by presenting to the court the actual condition of the building, as well as arguments why the conditions for issuing a provisional injunction are not met.
Prior to that, the defendant’s representative informed the court that the application for injunction was mistakenly addressed to the Cluj Tribunal, and that the competent court to hear it is the Cluj-Napoca Justice Court.
For rejecting the claimants’ demands, the Brisc Legal team developed a series of arguments to show non-fulfillment of the conditions set out by Article 997 of the Civil Procedure Code:
- Regarding the first condition, the existence of a legal appearance in favor of the claimants, the defendant showed that although the claimants had submitted repeated requests to authorities, the competent authorities had inspected the works undertaken by the defendant, and these inspections did not result in detecting or sanctioning any irregularities. It was even established that for the works executed there is no legal obligation to obtain a building permit under the law.
- As to the real situation of the building, the defendant’s lawyer informed the court that—despite the claimants’ assertions—all the spaces where construction works are being carried out are the exclusive property of the defendant; also showing that the modifications carried out do not negatively affect the stability or strength of the building, relying on a technical expertise report commissioned by the defendant at the time of the works.
- Concerning the alleged urgency cited by the claimants, the defendant’s lawyer showed that the claimants brought the lawsuit 3 months after the start of the defendant’s works, at which point most works were already completed, and that the request to suspend works had become irrelevant. Moreover, similar works had been done previously, including by persons connected to the defendant.
- The Brisc Legal team also argued that the condition of preventing imminent damage is not met, because the claimants did not point to any harm that could be imminent relative to the works done by the defendant. The claimants omitted to demonstrate any damage, much less one with the characteristics required by law, namely imminence and irreversibility.
- Invoking a possible effect on the structural resistance was insufficient so long as it was not backed by evidence.
Considering all arguments presented by the Brisc Legal team, the court of first instance rejected the request for the provisional injunction, taking into account that the appearance of right exists in favor of the defendant, including the technical expertise of MLPAT, and showing that, following control by competent authorities at the building, no irregularities were found.
PROCEEDINGS ON APPEAL, BEFORE CLUJ TRIBUNAL
The Judecătoria Cluj-Napoca judgment was appealed by the claimants, who repeated their arguments from the merits, requesting that the appeal be granted.
Following the argumentation presented by Brisc Legal lawyers, the Cluj Tribunal dismissed the appellants’ demands in appeal, holding that urgency must persist throughout the judicial proceedings, including on appeal; it is not sufficient that urgency existed when the request was filed, if it disappears subsequently. In this case, the claimants notified the court only 3 months after the start of the works.
The court also ruled that no works were being carried out on the building by the time of appeal, as they had already been completed.
The Tribunal held that the condition of legal appearance in favor of the claimants is not fulfilled. Competent construction inspection authorities had conducted numerous controls and found no irregularities, and a technical expert report established that the building’s structural integrity had not been compromised.
Final Outcome
The appellate court upheld the first-instance decision and rejected the request for the provisional injunction; it also ordered the claimants to cover the legal costs requested by the defendant.