Cristian Hoalbă, the godfather of the mayor of Prundu Bârgăului, Doru Crișan, lost another lawsuit in his desperate attempt to keep the hall he built on the basis of two building permits issued by Prundu Bârgăului City Hall outside the law, acts annulled by the courts. As his three neighbors demanded the demolition of the building, through a bailiff, Hoalbă found it appropriate to challenge the enforcement in court. However, the judges, both from Bistrița Court and from Bistrița-Năsăud Tribunal, said NO!
We remind you that, at this moment, the application of the Institution of the Prefect is being judged on the role of the Bistrița-Năsăud Tribunal, for annulment of a third building permit obtained under the law by Cristian Hoalbă. In the same case, the three neighbors of the lair are also the applicants.
Adriana Tăut, Victoria Cireș and Maria Morariu requested the demolition of Hoalbă’s hall by bailiff, in January 2021, at 4 Monday after the Cluj Court of Appeal definitively annulled to the lair the second building permit issued illegally by Prundu Bârgăului City Hall, and by sentence he was obliged to abolish the construction.
But as he did not want to comply with the summons of the bailiff, he went to court and challenged the enforcement. Obviously to take the time to find a solution to save his construction, but also to prove somewhat that he does what he wants, not what his neighbors want.
He didn’t need a demolition permit
Only the first court, respectively the Bistrița Court, did not agree with him, but with the neighbors, so that Hoalbă appealed to the Bistrița Tribunal. Where he took it again, the judges considering that the action of the lair is unfounded.
Thus, in the statement of reasons for the sentence, it is shown that Hoalbă demanded the annulment of the forced execution on the grounds that the demolition of the hall cannot be achieved within 10 days, whereas demolition involves the issuance of a demolition permit, because the building has not been built illegally, but on the basis of a building permit subsequently canceled. However, the Court of First Instance states with the subject and preached the exact opposite, namely that the building permits were issued illegally and were therefore annulled, plus that the demolition of the hall was imposed as a sanction by the same sentence, so that in this context a demolition permit is no longer required, but direct action could be taken, being in fact abusive works.
“By civil sentence no. 74/2020 pronounced by the Bistriţa-Năsăud Tribunal on March 24, 2020 in file no. 594/112/2019 (…), which was the basis for the initiation of the forced execution, final on 5 October 2020, it was ordered to cancel the construction authorization no. 38 / 27.11.2018 issued in favor of the applicant, this being obliged to abolish the edified construction.
Previously, by the civil sentence no. 100/2019 pronounced by the Bistriţa-Năsăud Tribunal on March 29, 2019 in file no. 210/112/2012 (…) it was ordered to suspend the execution of the building permit no. 38/2018 until the settlement of the action aimed at canceling the authorization.
Authorization no. 38/2018 concerned the performance of modification works during the execution for the construction of storage hall and sale of household materials, food products and field fencing for the construction of which authorization no. 16 / 29.03.2017, definitively annulled on November 15, 2018 by the civil sentence no. 285/2018 pronounced by the Bistriţa-Năsăud Tribunal in file no. 1308/112/2017.
Enforcement was launched on January 20, 2021 (…).
After the promotion of this appeal at the execution, the authorization for the abolition of the existing works and for the construction of a new work was submitted, separating in the house of residence in P + E height regime, household annexes and land fencing (…), whose judicial annulment was requested in file no. 2366/112/2021 by the Prefect of Bistriţa-Năsăud County, pending before the court, with a trial term on December 15, 2022, as well as in file no. 2815/112/2021 by the defendants in this file, connected on March 17, 2022 to file no. 112/2366/2021 (…).
As it results from the content of the executory title, the measure of dissolution of the construction was ordered as a sanction, taking into account the issuance of authorization no. 38/2018 in violation of the provisions of Law no. 50/1991, because the changes in the theme regarding the construction works did not intervene during the validity period of the construction permit; at the basis of issuing the authorization was the documentation drawn up in order to issue the first authorization no. 16/2017, annulled by court decision; the requirements established by the civil sentence no. 285/2018, documentation not containing sufficient written and drawn parts or containing insufficiently explicit parts to clarify issues related to:
‣ ⦁ withdrawals from the lateral and posterior limits, in this sense being necessary:
– a more explicit drawing plan and a situation plan, on which to place the buildings on the neighboring peacocks;
– the percentage of land occupation and the land use coefficient;
– a brief for calculating the surfaces of the construction);
‣ □ fencing location and how it relates to neighborhoods;
‣ geotechnical study;
‣ □ other plates regarding the demolition of the two buildings mentioned in the technical memorandum and on the situation plan, thus violating the provisions of art. 7 para. (12) of Law no. 50/1991.
Issuance of a building permit in violation of the law, annulled by the court, is equivalent to its absence
The need to issue a decommissioning authorization is regulated in those situations where the works have been lawfully carried out, not when the abolition is ordered as a sanction, as a result of their illegal performance, in the absence of a valid building permit issued.
As it is about abusively performed works, the issue of preparation, prior to dissolution, cannot be raised, of a documentation (expertise or technical project) identifying the works to be carried out and the conditions of execution, as long as it is the need to repress abusive conduct, the situation prior to the construction of unauthorized constructions must be restored.
Carrying out unauthorized works, the applicant assumed the risks of such conduct, including the abolition of works „, the court states in the statement of reasons.
Court: The enforceable title must be enforced!
As regards the 10-day period within which Hoalbă could not fall within at all, the court states that the demolition had to be started on the date of the final stay of the judgment of the Cluj Court of Appeal, by which the second building permit was canceled and the hall was required to be demolished.
‘In the case of liability for damage caused, set out in the file in which the enforceable title was delivered, the enforceable title must be enforced in accordance with its operative part, so that provided that no legal requirement is provided for the measure of dissolution, such conditions cannot be added.
Nor can the defense that the abolition cannot be ordered within the given 10 days be retained, as long as the abolition had to be started on the date of the final stay of the civil sentence no. 74/2020, 5 October 2020, and enforcement was requested a few months later, on January 20, 2021.
Based on the revealed considerations and applying the provisions of art. 480 para. (1) C.proc.civ., Recalling that the issued executory title sanctioned abusive conduct, ordering the demolition as a sanction of works carried out on the basis of an illegal authorization, without prejudice to the need to obtain in advance an authorization to abolish or carry out a project to identify the work to be abolished, taking into account the need to ensure the enforcement of a final judgment, the court will reject the declared appeal as unfounded „, the court document states.