A new way of making buildings legal

1.  Preliminaries

The general rule in Romanian law is that execution of construction works must be authorized, according to Article 1 of Law No 50/1991 on the authorization of construction works performance ("Law No 50/1991"). This rule is subject to exceptions expressly regulated by the above-mentioned rule, such as that for conservation works or works concerning special constructions (Article 1 para. (3) of Law No 50/1991).

In any case, the authorization of construction works is not a modern rule of the legislator, as similar provisions were also found under Decree No 144/29 March 1958 on the regulation of the issue of Building Permits, repair, and dismantling of buildings.

The issue of authorizing construction works/establishing legality has been and still is of significant importance not only in terms of the associated doctrinal developments but also in terms of the possibility for the owner to exercise the related property right in full (usus, fructus, abusus).

We would point out here that, after the actual construction of any building, a report of acceptance on completion of the work must be obtained, in accordance with Article 37 para. (5 ). of Law no. 50/1991. Further, according to Art. 37 para. (1) of Law no. 7/1996, it is stipulated that: 'The right of ownership of the buildings shall be entered in the land register on the basis of a certificate of attestation issued by the local authority issuing the building permit, confirming that the construction of the buildings was carried out in accordance with the Building Permit and that there is a record of acceptance on completion of the works, as well as the other legal provisions on the matter and a cadastral documentation'.

Thus, in the event of failure to obtain planning permission, the prerogatives of ownership of buildings cannot be exercised in full or are only exercised in part.

For example, if a building is built on land owned by another person, the builder or investor cannot become the owner of the building in the absence of the acceptance report, which confirms the transfer of ownership of the building.  Moreover, even in the event that the investor also owns the land, this would not be a judicial application of the accession (in the light of the interpretation of Decision No 13/2019 of the HCCJ), but an application of the material provision on the land, since the construction thus carried out could not be registered without the authorization of the building.

2. The modalities of legality and registration of buildings built without a building permit before 2020

To begin with, it should be noted that this presentation concerns only buildings executed after  1 August 2001, the date of entry into force of Law No 453/2001 amending and supplementing Law No 50/1991. Buildings constructed prior to 2001 are subject to a special regime and are entered in the land register, in the absence of a building permit, on the basis of the tax certificate attesting to the payment of all tax obligations owed to the local public administration authority in whose area the building is located, and the land registry documentation.

With regard to buildings constructed after  1 August 2001, until 2020 there were three ways of entering into legality and registration of an unauthorized construction:

- by issuing an authorization for subsequent entry into legality according to Art. 59 para. (3) of the Methodological Norms for the application of Law 50/1991;

- by the formulation of a legal action for the establishment of the accession of the unauthorized construction;

- for the contravention sanctioning of the real estate developer/owner by the competent authority with the mention of entering into legality within a certain term and according to the conditions imposed by the contravention report;

In detail, the years 2019-2020 represented a turning point in the matter of the entry into legality of unauthorized real estate, both through the work of the legislator, with the entry into force of the Order of the Minister of Public Works, Development and Administration No. 3454/2019 ("MLPDA no. 3454/2019") by publication in the Official Gazette of Romania on 6.01.2020, and by the courts, with the Decision in Appeal in the Interests of the Law no. 13/2019 issued by the High Court of Cassation and Justice published in the Official Gazette of Romania on 3.06.2019.

Firstly, MLPDA Order No 3454/2019 repealed Article 59 para. (3) of the Methodological Norms for the application of Law no. 50/1991, which regulated the possibility of issuing a building permit for entry into legality. A provision enshrining a posteriori authorization of construction no longer exists at present, the only means of entry into legality existing at the moment being the result of a contravention sanction and the special procedure introduced by Art. 37 para. (6) of Law No 50/1991, which is a special procedure for registration in the absence of a building permit.

Secondly, by Decision No 13/2019 of the High Court of Cassation and Justice, the Supreme Court noted that the lack of a building permit or failure to comply with its provisions, as well as the lack of the report of acceptance on completion of the works, constitute impediments to the judicial recognition, in the context of an action for a declaration, of the right of ownership of a construction carried out by the owner of the land with their own materials.

Decision No 13/2019 is of fundamental importance for the mechanism for complying with the law of unauthorized buildings, because for a long period of time this legality by direct registration could be achieved, omissio medio, by bringing actions for a declaration of the acquisition of ownership by the effect of artificial accession to the building constructed without a Building Permit.

The courts which validated this type of action took account of the fact that the provisions of Article 577 of the Civil Code do not establish a presumption of ownership, but a genuine method of acquiring ownership (accession would occur by operation of law as the building was erected, and a possible lack of authorization could only give rise to a contravention liability in the first instance).

Thus, it can be seen that during 2019 and until the beginning of 2020, two usual ways of legal entry and registration of unauthorized constructions have been abolished, namely the possibility of issuing a building permit postfactum on the basis of Art. 59 para. (3) of the Methodological Norms for the application of Law No 50/1991 and the formulation of a legal action for the establishment of the unauthorized construction.

The only remaining option for the legality of unauthorized constructions was to maintain the constructions following the application of a penalty under Article 28 of Law No 51/1991, which is applicable only if the competent authority carries out a control within three years of the construction of the building.   

In short, the latter hypothesis implies that the competent authority will penalize the property developer/owner by means of a contravention and, by means of the official report issued in this respect, will order the maintenance of the constructions carried out without authorization and the granting of a deadline for obtaining authorization to enter into legality, under the conditions imposed by the competent authority of the local public administration.

If the building constructed without a building permit meets the conditions required to bring it into compliance with the urban planning parameters, the competent local public administration authority may issue a building permit to bring it into compliance with the law.

The decision of the competent public authority to maintain the works built without a building permit is currently expressly conditional only on the works being in conformity with the provisions of the urban planning documentation in accordance with Article 59 para. (1) and (2 ) of the Methodological Norms approved by MDRL Order no. 839/2009:

 "(1) The control body that has sanctioned a contravention for the act of carrying out construction works without authorization or in violation of its provisions, according to the provisions of art. 28 para. (1) of the Law, in addition to stopping the execution of the works, is obliged to order the necessary measures to be taken to bring the works into compliance with the provisions of the authorization, or to dismantle the works executed without authorization, within a period of time to be determined in the report.

(2) In order to comply with the provisions of para. (1), according to the Law, the public administration authority competent to issue the building/dismantling permit is obliged to analyze how the construction corresponds to the regulations of the urban planning documents approved for the site area, and to order, if necessary, the maintenance or the dismantling of the constructions carried out without authorization or in violation of its provisions."

3. The procedure for direct registration of buildings on the basis of the certificate of attestation of building construction once Law No 7/2020 enters into force

The absolute novelty lies in the second sentence of Article 37 para. (6) of Law no. 50/1991, introduced by Law no. 7/2020 published in the Official Gazette of Romania on 8 January 2020, which requires:

·  the direct registration of unauthorized constructions in the absence of a building permit, and

·  the acceptance of the building on the basis of a certificate of attestation or a certificate of building construction.

For accuracy, the relevant provisions are as follows:

"In the case of constructions for which the execution of works has been carried out without a building permit, and the expiry of the limitation period provided for in Article 31 no longer allows the application of sanctions, the certificate of attestation/certificate on the building of the construction shall be issued on the basis of a technical expertise on compliance with the applicable fundamental requirements on quality in construction, including compliance with the approved urban planning regulations, confirming the current situation of the constructions and compliance with the relevant provisions and a cadastral documentation. If the technical expertise does not find that all the basic requirements and those relating to compliance with planning regulations have been met, the certificate of attestation/certificate of construction shall not be issued."

It results from an analysis of the above-mentioned text that the scope of the provisions of Article 37 para. (6) of Law No 50/1991 applies to:

·   Works carried out without authorization, namely:

-   buildings constructed without planning permission, a category which could also includes buildings whose planning permission have been annulled by the courts;

-   buildings which, although authorized, have not been built in compliance with the authorization;

·   buildings which have not been accepted on completion

·   Works carried out without authorization and which can no longer be sanctioned by a contravention due to the expiry of the 3-year limitation period under Article 31 of Law 51/1991.

For the sake of accuracy, it should be pointed out here that the High Court of Cassation and Justice, in its Decision No 16/2020 on Appeal in the Interests of the Law, established that the limitation period for the contravention of the law runs from the date of the actual completion of the construction. Thus, the limitation period is to be assessed on a case-by-case basis, depending on the material completion of each individual building.

Furthermore, two conditions must be met cumulatively for the certificate of attestation/certificate of building to be issued:

·  A technical expert's report on the construction must be carried out, which must highlight two aspects, and there may be a question of the need for multiple reports:

- Expertise on the quality of the construction, certifying compliance with the applicable fundamental requirements on quality in construction: mechanical strength and stability, fire safety, hygiene, health and the environment, safety and accessibility in operation, noise protection, energy saving and thermal insulation and sustainable use of natural resources;

- an expert's report on town planning, certifying that the building complies with the town planning regulations for the area;

·  The drawing up of a cadastral documentation, which involves a document drawn up by a natural or legal person authorized by the National Agency for Cadastre and Real Estate Publicity and which includes the measurements and technical data of a building.

4. Three problematic elements in the current configuration of Article 37 of Law 50/1991

On a brief analysis of the provisions of Art. 37 para. (6) of Law no. 50/1991, several shortcomings of a legislative nature can be observed which could make the concrete application of this method of entry into legality particularly difficult.

4.1. With regard to verifying that the construction complies with town planning regulations

The wording of the legal text concerning verification of the building's compliance with planning parameters is incomplete, as it is not expressly stated whether compliance is determined by reference to the planning parameters in force at the time the building was constructed or at the time of the expert assessment.

However, determining the reference moment to which the fulfilment of the conditions is related is particularly important, as town planning plans are constantly evolving and adapting at the level of each territorial administrative unit. This is all the more so since the essence of this method of conforming to the law by direct registration is precisely the passage of a period of at least three years from the time of completion of the construction for the fulfilment of the condition of the limitation period, according to Article 31 of Law No 51/1991.

On this issue, the view [1] has been expressed that the wording of Article 37 para. (6) of the Law no. 50/1991 requires that the verification of the conditions be made by reference to the current state of the building and to the rules existing at the time of the expert's report. We share with reservations the opinion expressed only with regard to the construction of the building in the absence of any authorization, because it would be difficult to determine the exact time of construction of these buildings, and it would be necessary to administer a real evidence in this regard.  In the case of constructions for which a building permit has been issued and which have either not complied with the building permit or have not had the works acceptance procedure carried out, we consider that it would be necessary to check the urban planning parameters at the time the building permit was issued which were not complied with or not completed.

The nuanced approach presented above is in line with the principle of tempus regit actum, established by the Civil Code in Art. 6 para. (1) “The civil law is applicable as long as it is in force.” Moreover, Law No 350/2001 on spatial planning and urban development requires that the planning activity is carried out by the competent central and local authorities in accordance with the medium and long-term spatial development strategy and with reference to the economic development strategy, carried out in the interest of the community using it (Art. 2-8 of Law No 350/2001).

We also refer in this context to the regulation conferred on urban planning documents by Law 350/2001:

"Art. 39 (1)For the purposes of this law, "land use and urban planning documents" means land use and urban planning plans,  general urban planning regulations and local urban planning regulations, endorsed and approved in accordance with this law."

Art. 44 (1)Urban planning documents are the result of an urban planning process concerning a given territory, which analyzes the existing situation and establishes the objectives, actions, processes and measures for the planning and sustainable development of localities. Urban planning documents are drawn up by interdisciplinary teams made up of specialists certified in accordance with the law."

As a result, we consider that the reporting of constructions built in violation of the building permit or without the building permit and the acceptance procedure should be carried out in relation to the land-use planning and urban planning regulations and documentation in force at the time of issuing the permit, otherwise the issue of non-compliance with the development strategy at the time of granting the initial permit and the urban development plan would arise. We consider that this opinion is also supported by the configuration made by the legislator of the conditions for granting new building permits for the occurrence of changes in the subject matter [2] under Article 151 of Law No 50/1991 and Article 66 et seq. of the Methodological Norms to Law No 50/1991.

More specifically, Article 151 of Law No 50/1991 establishes that, in order to obtain a new building permit, according to the provisions of para. (15), the applicant shall submit a new technical documentation - T.D., drawn up in accordance with the changes in the subject matter, and the competent local public administration authority shall decide, as appropriate:

(a)to issue the new building permit, if the works corresponding to the changes in the subject matter are within the limits of the administrative act of the competent authority for environmental protection, as well as the approvals and agreements obtained for the original building permit;

b)the resumption of the authorization procedure under the conditions of this Law, if the works corresponding to the changes in the subject matter exceed the limits of the administrative act of the competent authority for environmental protection, as 

authority for environmental protection, as well as of the opinions and agreements obtained for the initial construction authorization."

Thus, including the need to resume the approval process in the event of a change in the subject matter of the works, it is necessary to refer to the opinions and agreements obtained for the original construction permit, i.e. the opinions and agreements provided by the competent authorities in accordance with the land-use planning documents at the time of issuing the original permit.

4.2. Expert opinions

One of the essential conditions of this method of compliance with the law is that a number of technical expert reports be carried out, both in the field of building expertise and in verifying compliance with the conditions laid down in Law No 10/1995 on quality in construction - work that can only be carried out by specialists working in the field of construction, as laid down in Article 37 para. (6) of the Law. 6 of Law no. 50/1991, which refers to the carrying out of technical expertise, without indicating the possibility of carrying out similar specialist work.

Expertise in town planning matters required by Article 37 para. (6) of Law No 50/1991 raises, however, a number of significant problems, since there are currently no authorized experts in the field of town and country planning [3]. 

Such a matter makes it virtually impossible to draw up the documentation for obtaining the certificate of attestation or the attestation of building construction. In this regard, we would like to mention that, although the specialization "town and country planning" is provided for both by Order  199/C of 18 January 2010 for the approval of the Nomenclature of Specializations of Forensic Technical Expertise and as a function of the Romanian Register of Town and Country Planners, there are still practically no accredited specialists in this field.

In this respect, it is difficult to imagine the creation of a complete documentation in accordance with the requirements of Article 37 para. (6) of the aforementioned act, as long as there are currently no authorized extrajudicial or judicial experts in the urban planning field.

In view of the fact that there are no special provisions in the Methodological Rules to Law No 50/1991 concerning the interpretation or detailing of the conditions imposed by Article 37 para.(6) of the aforementioned normative act, we consider that the competent public authority has the possibility of rejecting applications for the issue of the attestation/certificate of attestation, as long as they are not accompanied by technical expertise in construction and urban planning, even for the hypothesis of carrying out technical expertise in other related fields, such as architecture.

With regard to the contentious procedure for obtaining the certificate of attestation or the certificate of construction of the building, we consider that it would be possible to meet this requirement with the assistance of specialists in the field, appointed by the court under Article 330 para. (3) of the Civil Procedure Code. “In strictly specialized fields, in which there are no authorized experts, ex officio or at the request of any of the parties, the judge may request the opinion of one or more personalities or specialists in the field.''

4.3. Absence of correlation between Article 37 para. (6) of Law 50/1991 and Art. 37 para. (1) of Law No 7/1996.

Without further reading the wording of Article 37 para. (1) of Law No. 7/1996, as set out in the previous sections, it should be pointed out that the Article requires registration on the basis of the certificate of registration issued by the issuing authority. In practice, this must confirm that the construction of the buildings has been carried out in accordance with the building permit and that there is an acceptance report on completion of the work.

However, it is clear that the certificate of attestation or the attestation on the construction of the building is issued precisely in the absence of a building permit and a record of completion of the works - a contrary interpretation would render Article 37 para. (6) of Law 50/1991.

However, in the absence of an amendment to the provisions of Law No 7/1996, which also reflects this new hypothesis of registration of buildings, and against the backdrop of potentially excessive formalism, there is the possibility of the application for registration of the building in the land register being rejected (even under the conditions laid down in Article 37 para. (6) of Law No 50/1991).

5. Rejection of the application for the issue of the certificate of attestation/certificate of construction - potential remedies.

Final sentence of Art. 37 para. (6) of the Law no. 50/1991 establishes the possibility of rejecting the application for the issuance of the certificate of attestation/certificate of building construction on the grounds of failure to meet all the basic requirements and those relating to the inclusion in the urban planning indexes.

If the competent public authority considers that not all the conditions laid down in the above-mentioned legal text are met, the investor or builder would have practically no other means of obtaining legality for the construction concerned. It should be borne in mind here that one of the preconditions of the mechanism established by Article 37 para. (6) of Law 50/1991 is precisely the prescription of the application of the penalty. Moreover, with AIL Decision No 13/2019 of the High Court of Cassation and Justice, as mentioned above, the judicial recognition of the right of ownership based on accession is also prevented.

6. Conclusions

The brief analysis carried out in this presentation shows that the provisions regarding regulatory compliance by direct registration of unauthorized buildings, although a novel development, presents numerous difficulties in terms of implementation. This is due to the difficulty of effectively and fully meeting all the conditions imposed by Article 37 para. (6) of Law 50/1991.

However, given that the provisions of Article 37 para. (6) of Law No. 50/1996 are not fully implemented or are inconsistent with other legislation, the competent public authority has the power to reject the application and the related documentation for not formally fulfilling conditions that are practically impossible to meet. Of course, the public authority has the possibility to interpret Art. 37 para. (6) of the Law no. 50/1991 in a manner intended to produce effects, for example by accepting the execution of specialized works in the field of town planning or technical expertise in architecture in substitution of technical expertise in town planning, but this attitude remains at the discretion of the authority.

In these circumstances, in the event of a negative response from the competent public authority, we consider that the only possible solution remains that of an action in administrative dispute under the terms of the law on administrative disputes, in the light of the excess of power, in accordance with Article 2 letter n) of Law No 554/2004, consisting in the exercise of the public authorities' right of assessment in violation of the limits of the competence laid down by law or in violation of the rights and freedoms of citizens.

In our opinion, for the hypothesis in which the contravention liability is time-barred and the competent public authority rejects the application for the issuance of the certificate of attestation or the certificate of building construction, after following the preliminary procedure, an action may be brought to determine the fulfilment of the fundamental conditions under Article 37 para. (6) of Law 50/1991 through the courts. This type of action will seek to demonstrate that the unauthorized building is within the parameters of town planning and the necessary expert reports or specialist work will be carried out to prove this.

MAXIM/Civil Lawyers Society
Av. Andreea Talida Ardelean

[1] S. Botic (coordinator), Law no. 50/1991 on the authorization of construction works, Ed Hamangiu, Bucharest, 2021, p. 813.

[2] According to the definition in Annex no. 2 to the Law, a change of theme means any change initiated by the investor/owner concerning, as the case may be, the 

characteristic functions and/or functional capacities, the approved technical-economic indicators, the spatial and/or site solutions or other such requirements specific to the investment, with effects on the technical documentation - T.D. that has based the issuance of the construction/dismantling authorization (art. 66 para. (1) of the Methodological Norms to Law no. 50/1991); 

[3] Ibidem, p. 814.