Factual Context and Object of the Dispute
The dispute analyzed by the Cluj Tribunal involved the judicial supplementation of neighbors’ consent for the change of use of an apartment located on the ground floor of a building in the central and historic area of Cluj-Napoca, from a commercial space to a tertiary-use space.
The claimant, owner of the apartment, asked the court to establish the unjustified nature of the neighbors’ refusal and to issue a judgment to stand in lieu of an authentic consent, since their opposition blocked the administrative procedure for changing the property’s designated use.
The first-instance court granted the claim, and the solution was upheld on appeal: the Tribunal rejected the neighbors’ criticisms and confirmed that the refusal was unjustified.
Facts as Found by the Court
Particularities of the Property and the Area
The court found that the claimant’s apartment:
- was located on the ground floor of the building,
- had approximately 53 sqm of usable area,
- was situated in a central, historic zone with mixed residential and service uses.
A key factual element was the existence of other tertiary-use spaces nearby:
- within the same building (e.g., a restaurant),
- in buildings across the street,
- and the presence of an intense pedestrian and commercial circulation typical for the area.
The court noted that the zone does not have a predominantly residential character, meaning the neighbors cannot claim a level of tranquility exclusive to purely residential neighborhoods.
Relevant Legal Provisions
Art. 40 para. (5) and (6) of Law No. 196/2018
“(5) The neighbors’ consent is valid only in an authentic form.
(6) An unjustified refusal to give consent shall be established by the competent court, and its judgment shall be accepted by the issuer of the building/demolition permit in place of the neighbors’ consent.”
Art. 15 of the Civil Code
“No right may be exercised for the purpose of harming or injuring another, or in an excessive and unreasonable manner contrary to good faith.”
Art. 44 para. (7) of the Romanian Constitution
“The right of property obliges to respect duties regarding environmental protection and ensuring good neighborliness.”
Legal Framework on Change of Use and Neighbors’ Consent
Legal Regime for Change of Use Without a Building Permit
In assessing whether the neighbors’ refusal was justified, the court also considered the legal framework applicable to changes of use under Law No. 50/1991 on authorization of construction works.
Art. 11 para. (2) of Law No. 50/1991 – Full Text
Art. 11 para. (2)
(2) The following works may be carried out without a building/demolition permit, provided they do not alter the structural resistance and/or architectural appearance of buildings located in monument protection zones or in protected built-up areas that are not classified historical monuments or in the process of classification, or if they are not buildings of architectural or historical value, established by approved urban planning documents:
(…)
g) non-structural, demountable partition changes, made of lightweight materials and that do not alter the internal spatial concept;
h) change of use, only if carrying out such change does not require construction/demolition works for which the law provides the issuance of a construction/demolition permit, in compliance with approved urban planning documents.
This provision clarifies that a change of use can be a juridical operation separate from construction works that require authorization, a point relevant in evaluating neighbors’ consent requirements.
Neighbors’ Consent in the Procedure for Change of Use — Ordinance No. 839/2009
Situations Where Neighbors’ Consent Is Required
The implementing norms for Law No. 50/1991 describe concrete situations in which neighbors’ consent is required, and the purpose of such requirement.
Art. 27 of Ordinance No. 839/2009 – Full Text
Art. 27
(1) The neighbors’ consent, provided under point 2.5.6 of section I “Written Documents” of chapter A “Technical documentation for the authorization of construction works – D.T.A.C.,” provided in Annex no. 1 to this ordinance, is required in the following situations:
b) for construction works needed in order to change the use in existing buildings;
c) in the case of placing constructions with a use different from that of the neighboring buildings.(3) The situations referred to in paragraphs (1)(b) and (1)(c) correspond to cases where, following a new investment, situations of discomfort may be created due to incompatibilities between the preexisting function and the proposed one, both when changes of use are made inside the building and when a new construction’s functionality is incompatible with the character and functionality of the area in which it is to be integrated. The most frequent causes involve affecting the residential function by implementing incompatible uses due to noise, circulation, emissions of fumes, etc.
(5) The neighbors’ consent is valid only in an authentic form.
(6) An unjustified refusal to give consent shall be established by the competent court, and its judgment shall be accepted by the issuer of the building/demolition permit in place of the neighbors’ consent.
Court’s Arguments on the Unjustified Nature of the Neighbors’ Refusal
Neighbors’ Right Is Not Discretionary
The Tribunal emphasized that although the law recognizes neighbors’ right to express their consent, this right cannot be exercised arbitrarily. A refusal is justified only if the change of use would cause inconveniences greater than normal in neighborly relations.
Refusal Based on Hypothetical Future Events
The court found that the neighbors’ opposition:
- was based on assumptions (potential noise, smells, traffic);
- concerned future and uncertain events;
- was not supported by actual, concrete, and proven harm.
According to the court, a justified refusal must relate to existing circumstances, not speculative scenarios.
Change of Use Is Not the Same as Authorization of a Specific Activity
An essential aspect was clearly distinguishing between:
- changing the use of the property, and
- authorizing a specific activity.
The court explained that:
- it was not judging the legality of operating a restaurant, bar, or fast-food establishment;
- such issues fall to the competent authorities during subsequent administrative procedures.
Therefore, neighbors’ refusal based on the possibility of future activities was not relevant.
Good Neighborliness and the Balance of Property Rights
The Tribunal performed a proportionality test between:
- the claimant’s right to dispose of her property, and
- the neighbors’ right to comfort and private life.
The court noted that:
- choosing to live in a central area with mixed uses implies accepting normal inconveniences;
- the neighbors’ refusal unjustifiably affected the claimant’s property right.
Conclusions and Impact on Judicial Practice
The Cluj Tribunal decision confirms a consistent jurisprudential line:
neighbors’ refusal to consent to a change of use must be objectively, currently, and proportionally justified.
The ruling provides clear guidance on:
- differentiating neighbors’ consent from the authorization procedure,
- sanctioning abusive exercise of opposition rights,
- protecting property rights in urban areas with mixed uses.