The Cluj Court of Appeal overturned the decision of the Cluj Tribunal and found that the authority\u2019s act of refusing to issue the urbanism certificate for construction caused the claimant a damage consisting in the potential rent for one year that she was deprived of during the inability to build. This case is especially relevant in the context of numerous decisions by Cluj courts in which the refusal of the Mayor of Cluj Municipality to issue urbanism certificates (and especially building permits) is upheld. In all those cases, the municipality can in the same litigation or, preferably, in a separate litigation, be obliged to pay compensation for the period during which construction was impossible.<\/p>\n\n\n\n By a decision of the Cluj Court of Appeal, SC Imobiliare Cluj SRL<\/strong>, assisted by a lawyer specialized in real estate and administrative law, obtained an order that the Mayor of Cluj Municipality issue an urbanism certificate for a 3,300 sqm property for the purpose of obtaining a building permit for works consisting of \u201cBank Headquarters and commercial spaces S+P+2E\u201d and \u201cMulti-family residential building S1+S2+P+10E.\u201d The Cluj Tribunal (first instance) held that the urbanism certificate merely outlines the limits of private property rights from the perspective of restrictions, and that the claimant did not invoke a damage caused by violation of her right to build, but extended causation to claim damage as unrealized economic profit (i.e. lost rent). For all these reasons, the lower court dismissed the claim by SC Imobiliare Cluj SRL against the Cluj Municipality. The claimant appealed that decision.<\/p>\n\n\n\n Examining the grounds of appeal, the Cluj Court of Appeal found that the lower court erred in holding that there was no causal link. The appellate court considered that the illegal act of the authority was the refusal to issue the urbanism certificate, which is a premise for administrative-patrimonial liability once the prior decision in the contentious litigation is final. Case Study \u2014 Administrative-Contentious Attorney Cluj: Obtaining Compensation for Refusal to Issue Urbanism Certificate Objectives Achieved: The Cluj Court of Appeal overturned the decision of the Cluj Tribunal and found that the authority\u2019s act of refusing to issue the urbanism certificate for construction caused the claimant a damage consisting in the potential rent for one … <\/p>\n
Accordingly, the Court of Appeal ordered the Municipality of Cluj-Napoca to pay compensation in the amount of \u20ac320,863.68<\/strong>.<\/p>\n\n\n\nRelevance of the Case<\/h3>\n\n\n\n
Presentation of the Case<\/h2>\n\n\n\n
Subsequently, the company initiated a claim before the Cluj Tribunal enforcing the administrative and patrimonial liability of the municipality, based on the fact already established by court \u2014 namely the unjustified refusal to issue the urbanism certificate (and failure to issue it after the court decision became final).
The requested compensation was represented by the equivalent of the uncollected rent for the period during which the urbanism certificate was not issued, given the impossibility of exploiting the constructions intended for erection, calculated via an expert evaluation.<\/p>\n\n\n\nAdministrative-Contentious Attorney Cluj: Legal Provisions<\/h2>\n\n\n\n
Further, because the urbanism certificate is not able to produce direct legal effects on the owner\u2019s right to build, it is implicitly not capable of producing effects on the estimated economic profit.
Hence, the court found no causal link between the mayor\u2019s unjustified refusal and the claimed damage (lost benefit).<\/p>\n\n\n\nFirst Instance Conclusions<\/h3>\n\n\n\n
Final Considerations After Appeal<\/h3>\n\n\n\n
That act affected the claimant\u2019s right to build.
Regarding the damage, it must be certain and unrepaired, and must cover both actual damage (damnum emergens) and lost benefit (lucrum cessans). In the pending litigation, the claimant had framed that damage in the form of lost benefit (\u201cuse value not realized\u201d). Because the public authority prevented the claimant from obtaining the necessary legal act, the lost benefit claim is legally permissible.
Although negative consequences continued beyond the court decisions\u2019 pronouncement, the Court of Appeal, applying equity and considering the circumstances, awarded only part of the requested compensation \u2014 specifically the rent for the planned buildings for a period of one year.
Thus, summing the annual rent for each space type composing the building for which the certificate was requested, the Court of Appeal awarded \u20ac320,863.68<\/strong> as damage in favor of SC Imobiliare Cluj SRL (assisted by a lawyer from Cluj specialized in real estate and urbanism).<\/p>\n","protected":false},"excerpt":{"rendered":"