In a complex case that went through several procedural cycles and a change of venue, the courts settled the issue of surface extensions made by “attic conversions” or extensions in the condominium attic of some apartments in a building classified as a historical monument. The analyzed decision highlights the civil sanction of rectifying inaccurate entries in the land book and the drastic consequences for the seller who guaranteed an unreal state of facts.
The Facts: Increasing Usable Area by Evading the Law on Historical Monuments
The dispute began with a claim filed by the plaintiff, owner of an apartment in a condominium building in Cluj‑Napoca, located in a protected area and classified as a historical monument. The defendants, owners of two neighboring apartments, obtained in 2016 an update of the technical information in the Land Book (CF), managing to increase the usable areas from about 49 sqm and 36 sqm to over 149 sqm and 113 sqm.
This increase was achieved by carrying out attic conversions in the building’s attic, with the defendants arguing that the works had been carried out before August 1, 2001. This date is essential because, according to special legislation, constructions made before 2001 could be registered without a building permit, only based on a fiscal attestation certificate and cadastral documentation.
After these entries, one of the apartments was sold to third‑party buyers for the sum of €175,000. The plaintiff requested the annulment of the land book entries and the rectification of the areas to reflect the original description and surface, arguing that the extensions affected common parts (the attic) and were made without a permit in a historical monument after 2001.
The plaintiff sued, as defendants, including the bona‑fide buyers of the apartment with illegally increased surface to 113 sqm; the latter, assisted and represented by the team of Brisc Legal attorneys, filed a third‑party claim against the seller, requesting the resolution of the sale contract on the basis of the seller’s liability for eviction, with the effect of restoring the parties to their previous status and awarding damages.
Applicable Legal Texts Quoted in Full
To resolve the case, the court applied a combination of norms from the Civil Code, the Cadastre Law, and the special legislation on constructions and historic monuments.
1. From the Civil Code – Rectification of the Land Book and Forced Common Property Regime
Art. 907 – Notion:
(1) When an entry in the land book does not correspond to the real legal situation, it can be requested to be rectified.
(2) By rectification is meant the cancellation, correction, or amendment of any inaccurate entry made in the land book.
(3) The real legal situation must result from a final court decision.
The effects of the rectification judgment operate retroactively to the date on which the request for registration of the right whose rectification is requested was made, but without harming the rights acquired by bona‑fide third parties, under the conditions of this section.
Art. 908 – Cases of Rectification:
(1) Any interested person may request rectification of an entry in the land book if:
- the entry or the act on the basis of which the entry was made was not valid;
- the right registered was wrongly categorized;
- the conditions of existence of the right in writing are no longer met or the effects of the legal act on the basis of which the entry was made have ceased;
- the entry in the land book is no longer in accordance with the real legal situation of the property for any other reasons.
Because the extension targeted the building attic, the court invoked the necessity of the agreement of all owners for changing the destination of the common space.
Art. 658 para. (1) Civil Code: “The termination of the common use destination for common parts in buildings with multiple floors or apartments can be decided with the agreement of all co‑owners.”
2. From Law No. 7/1996 on Cadastre and Real Estate Publicity
Art. 37 para. (2): “Constructions made before August 1, 2001, which is the date of entry into force of Law No. 453/2001 for amending and supplementing Law No. 50/1991 on the authorization of construction works, etc., are registered, in the absence of a building permit, based on the fiscal attestation certificate attesting the fulfillment of all fiscal obligations due to the local public authority in whose area the construction is located, as well as the cadastral documentation.”
3. From Law No. 50/1991 on Authorizing Construction Works
Art. 3 para. (1) lit. b): “A building permit is issued for: … works of construction, reconstruction, consolidation, modification, extension, rehabilitation, change of destination or repair of buildings of any nature … at all categories of historical monuments provided by law, including annexes … located in protected areas …”
4. From the Civil Code – Liability for Eviction and Resolution
Art. 1700 – Notion: “Eviction represents the loss of ownership of the property, in whole or in part, or disturbance of the buyer in exercising ownership prerogatives, resulting from the claims of a third party or from the act of the seller, based on a right born prior to the sale and which was not known to the buyer at the time of concluding the contract.”
Art. 1702 – Extent of Damages:
(1) The damages owed by the seller include:
a) the value of the fruits which the buyer was obliged to return to the person who evicted him;
b) legal expenses incurred by the buyer in the process with the evicting party, as well as in the action for calling the seller to guarantee;
c) expenses in concluding and executing the contract by the buyer;
d) losses suffered and unrealized gains by the buyer due to eviction.
5. Special Regime for Historical Monuments (Law No. 50/1991 and Law No. 422/2001)
The court emphasized that, in the case of historical monuments, one cannot derogate from the obligation of obtaining a building permit, regardless of the date of execution of the works.
Art. 3 para. (1) lit. b) from Law No. 50/1991: “Constructions… of any other nature can only be carried out with respect for the building permit and the regulations on design and execution of constructions, for works of construction, reconstruction, extension, repair, consolidation, protection, restoration, conservation … including any works to be carried out at all categories of historical monuments …”
Reference to Law No. 422/2001: The court noted that breaching the rules on the protection of historical monuments is sanctioned at least at the contraventional level, with the defendants seeking to evade imperative provisions.
Reasons for Admitting the Rectification Request: Key Evidence Overturning the Defendants’ Statements
The court admitted the request for land book rectification after finding that the entries made in 2016 were inaccurate and did not correspond to the real legal situation. Key arguments were:
- Inapplicability of the Simplified Procedure for Historical Monuments: The court found that the defendants evaded imperative provisions of Law No. 422/2001. Even if built before 2001, the special regime for protection of historical monuments required a building permit and specific approvals, with no derogation allowed.
- Proof of Actual Time of Construction: Although the defendant‑seller gave a sworn statement that the attic conversion existed since 1999, evidence (witnesses and letters from the Ministry of Culture) showed that in 2001 the works had not even started. An act of voluntary partition from 2006 confirmed the original smaller surfaces, disproving the existence of the extension at that time.
- Affecting Forced Co-ownership The extension in the attic represented appropriation of common spaces, which required the unanimous agreement of all co‑owners and was not fulfilled. The court highlighted that the attic is a common part serving the structure and protection of the entire building.
- Lack of Valid Partition or Attribution Act: The defendants could not present a valid legal act (such as a voluntary partition contract or a general assembly decision of owners) that would have transferred the attic from common property to individual ownership before the works were carried out.
Admission of the Third‑Party Claim: Liability for Eviction
As a result of the CF rectification, the buyers of the 113 sqm apartment lost the attic surface, left with a significantly reduced property. The court considered this a partial eviction making it impossible to maintain the contract, and ordered:
- Resolution of the Sale Contract: The court ordered the annulment of the contract and returning the parties to their previous situation.
- Return of the Price and Damages: The seller was obliged to return the full price of €175,000, plus an additional €2,000 in value and damages of over RON 106,000 (representing accessory expenses, taxes, and fees).
- Bona‑Fide of the Buyers: The court noted that the third‑party buyers relied on the CF entries at the time of purchase, but the defect in the seller’s title (based on untrue statements) led to their loss.
Do you need legal assistance with Land Registry or Eviction disputes?
If you are facing a similar situation—whether it involves correcting inaccurate land registry entries, defending against an eviction claim, or recovering damages caused by a flawed sale—our team of lawyers at Brisc Legal Cluj-Napoca can provide the legal support you need.