When a person wants to erect a new building, one of the main questions is whether the neighbors’ consent is required. In general, building work can be carried out in compliance with the building permit, without the consent of the owners of the neighboring buildings.
However, there are also situations where the law expressly provides that the consent of the neighbors must be obtained. In the following, we will analyze these situations, the conditions and form that the neighbors’ consent must take, as well as the remedies available to the interested party in case of unjustified refusal of consent by the neighbor.
According to Annex 2 of Law 50/1991, construction works refer to:
- the realization of constructions of any kind (civil, industrial, agro-zootechnical, underground and aerial construction, communication routes, engineering works, works of art, etc.);
- the dismantling of buildings by demolition, dismantling, dynamiting, etc.
The concept of construction work therefore covers both the erection and the dismantling of structures of all kinds.
WHEN IS NEIGHBORS’ CONSENT NEEDED IN ROMANIA?
Art. 27 para. (1) of the Methodological Norms for the application of Law no. 50/1991 stipulates 3 situations in which the neighbors’ consent is mandatory for the construction of buildings:
- for new constructions, located adjacent to existing constructions or in their immediate vicinity, only if intervention measures are necessary to protect them;
- for construction works necessary to change the use of existing buildings;
- in the case of the siting of constructions with a different purpose from that of the neighboring buildings.
Let us consider these situations in turn:
a) New constructions in the neighborhood of existing ones
According to para. (2) of Art. 27, the situations referred to under a) concern cases where the new construction may cause damage to the existing construction in terms of: mechanical resistance and stability, fire safety, hygiene, health and the environment, and operational safety. Some examples are
- joining the existing building to the existing wall;
- foundation deeper than the existing building foundation;
- affecting the degree of sunshine of the existing building.
In these cases, the consent of the neighbor is necessary precisely to ensure that the new construction will not affect the strength, operational safety or health and hygiene conditions of the existing building.
b) Change of use in existing buildings
The second situation where neighbors’ consent is required concerns construction works necessary for change of use in existing buildings. For example, converting a residential apartment into a commercial space or changing the use of an office space into a dwelling.
The rationale behind this provision is to protect neighbors from possible nuisance caused by the incompatibility between the pre-existing function and the proposed change of use. For example, the installation of a restaurant on the ground floor of a block of flats may create noise, odor or traffic problems for the residents of the building.
c) The siting of buildings for a different purpose than that of neighboring buildings
The third situation is where a new building is to be sited for a different purpose from the surrounding buildings. For example, an industrial building in a predominantly residential area or a house between two blocks of flats.
In this case, too, the reason for requiring the agreement is to prevent incompatibilities between the function of the new building and the dominant character and functionality of the area in which it is to be integrated.
Therefore, in these 3 situations, the legislator considered that the property right of the person who wishes to build must be exercised with respect for the legitimate rights and interests of the owners of neighboring properties that could be affected by the new construction. Therefore, he made the issuance of the building permit subject to the consent of the neighbors.
It is important to note that the consent of the neighbours is not discretionary, but is conditional on the technical design and the building/ demolition permit ensuring that the measures to make the pre-existing construction safe are taken. These measures must result from the technical expert’s report commissioned by the investor of the new construction.
In other words, the consent of the neighbor is necessary, but the neighbor may not unreasonably withhold his consent if the design of the new construction provides for adequate measures to protect his property.
As regards the form of the agreement, Article 27 of the Implementing Rules provides that the agreement is valid only if it is given in an authentic instrument. Therefore, it is not sufficient for the agreement to be made simply by handwritten declaration by the neighbor, but it must be recorded by a notary public.
But what happens if the neighbor unjustifiably refuses to give his consent, even though the technical design provides for the necessary measures to protect his property? According to para. (6) of Article 27, an unjustified refusal by a neighbor to give his consent shall be established by the competent court. The court’s judgment will be accepted by the issuer of the permit in lieu of the neighbors’ consent.
Therefore, the person interested in building can take legal action against the neighbor who wrongfully refuses to give his consent. The court will examine the technical project and the planned safety measures and will assess whether or not the neighbor’s refusal is justified. If it finds that the refusal is unreasonable, the court will be able to give a judgment in lieu of the neighbor’s consent before the authority that issued the building permit.
Of course, such an action is time-consuming and costs extra for the investor. Therefore, before going to court, it may be useful to try mediation with the neighbor who refuses to give his consent, explaining the technical design and the measures envisaged to protect his property. Sometimes, the neighbor’s refusal may be due to ignorance or misunderstanding of these issues, and through discussion and further explanation, agreement could be reached amicably.
Finally, although the rule is that construction works can be carried out without the consent of the neighbors, there are, however, situations expressly provided for by law in which the consent of the owners of the neighboring properties is mandatory. These situations concern cases where the new construction is likely to affect the stability, safety or functionality of existing buildings, or where its use is incompatible with that of the surrounding buildings.
By making the consent of the neighbors mandatory in these cases, the legislator has sought to ensure a fair balance between the property rights of the person who wishes to build and the similar rights of the owners of neighboring buildings, who may be adversely affected by the new construction. However, the right of neighbors to give their consent is not absolute, but is conditional on the provision in the technical design of appropriate measures to protect the existing buildings.
If the neighbor unjustifiably refuses to give his consent, the investor can take the case to court to establish that the refusal is abusive. A favorable court decision will be able to replace the neighbor’s consent in the construction authorization file.
In any event, anyone wishing to build a construction in the vicinity of another property must make sure that he has obtained the necessary authenticated agreements from the owners of the neighboring properties, where appropriate. Otherwise, there is a risk that it will not be possible to obtain planning permission and that his investment project will be thwarted.
