Legal analysis of the Cluj Tribunal’s decision regarding the unjustified refusal of neighbors to grant consent for construction projects. Learn about the legal criteria and judicial substitution.
The urban development in densely populated areas of Cluj-Napoca often raises major legal challenges, especially when new projects involve deep excavations near old buildings. A recent decision by the Cluj Tribunal clarifies the distinction between a neighbor’s legitimate fear and an unjustified refusal, offering a balanced solution between the investor’s property right and the protection of neighboring properties.
Factual Background: A New Cultural Center in Downtown Cluj
Particularities of the Property and the Proposed Intervention
In this case, the court notes that the plaintiff owns a generous property in Cluj-Napoca (land of over 1,000 sqm and a building), for which they obtained the approval of a Detailed Urban Plan (PUD) through a Decision of the Cluj Local Council.
The proposed project aims for a radical transformation of the plot:
- Restructuring and demolition of the existing built fund to make room for a complex cultural center.
- Multiple functions: The cultural center is to include cultural, administrative, catering spaces, and accommodation units.
- Architectural configuration: The project provides for three building bodies with different height regimes, respecting property limits and neighboring blind walls (calcane).
To ensure the legality and safety of the demolition and construction works, the plaintiff based the project on a specialized technical expertise report, which served as the basis for the development of the entire technical execution documentation.
The conflict arose when the defendant, the owner of an adjacent property, refused to give her notarized consent for the demolition and construction permit, as requested by the urban planning certificate. She motivated her opposition by citing the fragility of her own house’s structure, the major risks generated by large-scale excavations (descending below her foundation’s base), and the potential alteration of the groundwater table.
The Legal Framework: Legal Texts Governing Neighbor Consent
The court based its decision on the strict provisions of construction legislation, reproducing in full the norms that impose and regulate this consent.
1. Law no. 50/1991 (Annex 1, art. 2.5.6)
Neighbor consent is mandatory, in notarized form, for:
“[…] new constructions, located adjacent to existing constructions or in their immediate vicinity – and only if intervention measures are necessary for their protection –, for construction works necessary to change the destination in existing buildings, as well as in the case of placing constructions with a different destination than that of the neighboring buildings.”
2. Methodological Norms for the Application of Law no. 50/1991 (art. 27 para. 4-6)
These norms provide the mechanism for resolving deadlocks:
“Neighbor consent will be given conditional on ensuring, through the technical project (P.Th.) and the construction/demolition permit, the measures to secure the pre-existing construction resulting from the technical expertise report prepared at the request of the new construction’s investor.” “The unjustified refusal to give consent is established by the competent court of law, its judgment to be accepted by the issuer of the construction/demolition permit in place of the neighbor’s consent.”
Why Did the Court Consider the Refusal “Unjustified”?
Although the court admitted that the defendant’s fears regarding structural risks are partially founded, it ultimately decided that a total refusal is an abuse of right. Here are the main arguments:
Viable Technical Solutions Exist
The technical and geological expertises carried out in the case demonstrated that, although risks exist (vibrations, groundwater changes), they can be completely neutralized through rigorous working methods. Experts proposed solutions such as secant bored piles, “up-down” excavation methods, and internal underpinnings. As long as modern technology allows for the neighbor’s protection, their opposition cannot block the project.
Succession of Administrative Stages
The defendant argued that the plaintiff did not take protective measures before requesting consent. However, the court clarified that the construction permit is a prior stage to the consolidations. Without this consent (or the judgment substituting it), the investor cannot obtain the necessary permit to start exactly those protection works requested by the neighbor.
The Neighbor’s Procedural Attitude
A key point was that the defendant requested the simple dismissal of the action, not its admission subject to specific guarantees (such as a counterclaim). The court noted that the defendant had previously requested an escrow account for potential damages but limited herself in court to a radical refusal, which exceeds the economic and social purpose of the right to object.
Evidence Analysis: Technical Substantiation and the Role of Expertise
In cases aiming to authorize construction works in the absence of neighbor consent, the evidence becomes the backbone of the judicial decision. The court cannot substitute consent based on simple abstract assertions but must determine if the project offers certain safety guarantees for adjacent properties.
1. Evidence Administered and Its Relevance
The evidence was designed to address the defendant’s two major fears: the structural stability of her house and the influence on the groundwater table.
- Technical Construction Expertise (The most extensive evidence): Its relevance consisted in evaluating the foundation solution. The expert analyzed the execution project and confirmed that using bored piles and the “top-down” method (building from the top down to support excavation walls) are modern technologies that eliminate the risk of collapse.
- Geotechnical and Geological Expertise: This was crucial to demonstrate that, although there are two basement levels, the water table will not flood the neighbors’ basements nor produce differential settlements. This evidence invalidated the defendant’s argument regarding “soil fragility.”
- Detailed Urban Plan (PUD) and Administrative Approvals: These documents proved the urban planning opportunity. Their relevance was to show that the project had already passed the filter of specialists from the City Hall; the court only had to analyze the specific impact on the neighbor, not the opportunity of erecting the building.
- Interrogation of the Parties: Revealed the defendant’s lack of availability for any technical solution, as she refused to sign the consent even in the presence of additional guarantees. This helped the court qualify the refusal as subjective/emotional, rather than technical.
2. Relevance in Issuing the Solution
The effect of corroborating this evidence was the conclusion that the defendant does not object because the project is wrong, but because she does not want any change in her vicinity. Since the law (Law 50/1991 and the Civil Code) protects the right to build as long as no damages are caused, and the technical evidence eliminated the hypothesis of damage, the court was legally obliged to admit the action and substitute the consent.
Legal Conclusion: The technical evidence demonstrated that the safety of the neighboring building is ensured through engineering solutions, transforming the neighbor’s opposition from a legitimate right into an abuse of right.
Conclusion: Property Right Is Not an Absolute Veto Right
The Cluj Tribunal’s decision emphasizes that the right to refuse a neighboring construction must be exercised in good faith. When the investor demonstrates through expertise that the safety of the neighboring building is a priority and technically ensured, the refusal becomes an unjustified obstacle to urban development.
The court’s judgment substituted the defendant’s consent, allowing the plaintiff to continue the project while protecting the neighbor’s interests through the obligation to strictly follow the technical solutions in the expertise.