Recent Changes To The Laws Regarding Construction Quality And Authorization - Landlord & Tenant - Leases

On 8 January 2020, Law no. 7/2020 on the amending and supplementing of (i) Law no. 10/1995 regarding the quality in construction (Law no. 10/1995), as well as of (ii) Law no. 50/1991 regarding the authorization of construction works performance (Law no. 50/1991) has been published in the Official Gazette (Law no. 7/2020).

The Order no. 3454 on the amending and supplementing of the Methodological Norms for Applying Law no. 50/1991 (Norms) has also been recently published in the Official Gazette, respectively on 6 January 2020.

There are certain essential aspects to be considered, as presented below:

Quality in constructions – Recent amendments

The changes brought to Law no. 10/1995 focus on the obligations and liabilities of investors, as well as of operators of public utility services and of owners of constructions, mainly on the obligations based on the connection to the branches and utilities networks.

1. Obligations and liabilities of investors

A set of new obligations for the investor was introduced by Law no. 7/2020, which comprises the following:
- a. Obtaining the agreement / authorization of the road administrator for making connections to the utilities networks of the urban infrastructure, with the payment of the connection fees corresponding to the branching;
- b. Performing the reception upon completion of works, only together with the reception upon completion of connection works to the public services and technical infrastructure, corresponding to the ensembles of individual and collective housing units, the constructions of public utility and the access routes;
- c. Performing the final reception upon the expiration of the guarantee period;
- d. Alteration of the building installations / networks related to the constructions which were subject to expert examination is made on the basis of technical documentation elaborated and approved in accordance with the legal provisions;
- e. The handing over of the construction to the owner shall take place only after the admission of the reception upon completion of works and after putting into service the authorized and final connections to the public utilities networks of the urban infrastructure, both in case of new investments and interventions on existing constructions that were not used during the execution of the construction works.

2. Obligations and liabilities of operators of public utility services

A new section has been introduced, regulating the obligations and liabilities of the operators of public utility services, in the sense that the execution of the connection / branching works is done on the basis of the execution contracts concluded with the certified builders and is performed within the deadlines provided in the connection contract.

3. Obligations and liabilities of owners of constructions

The obligations and liabilities of owners of constructions include the following:
- a. The commissioning of the construction shall take place only after the admission of the reception at the end of the construction works and after putting into service the authorized and final connections to the public utilities networks of the urban infrastructure, both in case of new investments and interventions on existing constructions that were not used during the execution of the construction works, handing it over and obtaining the authorizations provided by the law;
- b. The utilization of the construction can only be permitted after the admission of the reception at the completion of the works and after the handover of the construction, with all connections to the urban utilities, according to the notices of the utilities providers annexed to the building permit, having been put into service and received, by the investor owner / the initial owner.

4. Fine value for certain administrative offences

Failure to comply with the obligations referred under points 1.b, 1.c, 1.e, 2 and 3 hereinabove, if considered an administrative offence, is now sanctioned with a fine ranging from RON1,000 to RON100,000 (approx. EUR209 to EUR20,900), instead of the previous fine ranging from RON20,000 to RON 40,000 (approx. EUR4,188 to EUR8,375).

The authorization of the execution of construction works - Recent amendments

Law no. 50/1991 has also been subject to the amendments introduced by Law no. 7/2020, specifically in respect of the following noteworthy topics:

1. Issuance of authorizations / approvals

A new provision regulating the approval procedure for the construction and / or deviation works which exclusively concern the connection / branching to the existing technical-urban networks in the area has been introduced. For this type of works, the approval / authorization of the road administrator is issued by the competent authorities, on behalf of the operators of the technical-urban networks. The issuance of the aforementioned approval / authorization is based on the request made by the beneficiary of the objective, by taking into consideration the legal rights of the network operator. The building permit for the property and the approval / authorization of the road administrator for the connection facilities to the utilities are issued concurrently. The inability to issue an approval / authorization of the road administrator for the installation of the connection to one of the utilities will not block the process of issuing the other building permits for the property and for other utilities.
The same article further provides that the technical documentation is also necessary, in order to obtain the approval/authorization from the road administrator, with regard to the works completed on the public domain to the technical-urban infrastructure already existing in the area.
There is a new obligation for the economic institutions / operators entrusted by law to issue the approvals / authorizations to establish the final method for calculating the taxes / charges corresponding to the issuance of the respective approvals / authorizations.

2. Lack of necessity of a building permit

The list of works which can be executed without a building permit has been extended with three new categories, namely:
- a. aerial branching works in the areas where they are not prohibited by the local urban planning regulations;
- b. connection and branching works to the technical-urban infrastructure already existing in the area, executed on the public domain, subject to the approval / authorization of the road administrator;
- c. installation of photovoltaic systems for the production of electricity by prosumers and / or installation of solar panels for heating or preparing the hot water for domestic consumption, with the prior notification to the local public administration authorities and compliance with the law in force. The photovoltaic systems and / or solar panels will be supported by a structure consisting of constructive elements capable of ensuring the stability of the whole assembly and of taking over the loads resulting from its own weight and from the panels, as well as those resulting from the action of the wind and snow deposits.

3. The annulment of the building / demolition permit

As per the provisions of Law no. 7/2020, the building / demolition permits issued in breach of the legal provisions can be annulled by the administrative litigation courts, according to the law, pursuant to the introduction of the action by the prefect, following the control activity of the State Inspectorate in Construction. Therefore, the prefect is no longer entitled to annul the mentioned building / demolition permits without the court's intervention.

4. Liabilities and penalties

The list of administrative offences which can be ascertained and sanctioned only by the control bodies of the State Inspectorate for Construction has been supplemented, by adding the failure to establish the database by the responsible public authorities or to transmit by the owners of the technical-urban networks, within the legal terms, of the cadastral plans provided by Law no. 50/1991.
The new regulations do not require a building permit for the connection and branching works to the technical-urban infrastructure already existing in the area, executed on the public domain, as long as the approval / authorization of the road administrator has been obtained. As a consequence, the execution or demolition of these works, in breach of the provisions of the authorization, shall be deemed an administrative offence.
The amount of the fine applicable for the administrative offence committed by natural or legal persons, mentioned within article 26, letters b), d), e) and e1 of Law no. 50/1991, has been reduced. Prior to Law no. 7/2020, the amount of the fine was RON50,000 – RON100,000 (approx. EUR10,467 to EUR20,938), while the current amount is RON5,000 – RON20,000 (approx. EUR1,047 to EUR4,188).

5. Attestation certificate for the edification of constructions

In case the construction was built without a building permit and after the expiry of the limitation period (i.e. 3 years as of the date the offence was committed), the attestation certificate for the edification of constructions will be issued based on a technical report evidencing the compliance with the applicable fundamental requirements of quality in constructions. These fundamental requirements include the compliance with the approved urbanism regulations, which confirm the current situation of the constructions, and the compliance with the provisions regarding urban planning and with the cadastral documentation.
If the technical report emphasizes the non-compliance with the requirements above, the attestation certificate for the edification of constructions will not be issued.

6. The Committee for Single Approval (CSA)

The procurement of the endorsements and the approvals can be carried out (i) directly, by the applicant or their proxies, prior to the submission of the technical documentation for the building permit, or (ii) through the CSA, at the request of the applicant.
The competent authorities of the public administration at the county level and at the level of city capitals of the county have the obligation to organize within the specialized structures the CSA, so that, against payment, according to the law, at the request of the applicant, the necessary endorsements and approvals for the authorization of the execution of construction works can be obtained, based on the documentation for authorizing the execution of the construction / demolition works, together with the specific technical approval documentation, submitted in electronic format. A more detailed description of the CSA and of its attributions was also introduced, alongside with the herein amendments to Law no. 50/1991.
Within no more than 60 business days from the entry into force of this law, the local public administration authorities organizing the CSA and the institutions which issue the approvals should be registered with the electronic P.C.U. portal. The local public administration authorities which have already been registered with the before mentioned portal, shall create a separate account for its functioning and specific approval procedures.
There is another period of maximum 90 business days from the entry into force of this law during which the local public administration authorities, together with the issuers of approvals and endorsements, approve the flows and configuration of the specific procedures, through the single point of contact.

Methodological Norms for Applying Law no. 50/1991 – Recent amendments

Order 3454/2019 has mainly focused on correlating the previously amended provisions of Law no. 50/1991 with its corresponding Norms. In addition to the expected changes mentioned, the following key amendments should also be considered:

1. The validity of the building / demolition permit

The validity of the building / demolition permit has now been extended to 24 months from the date of issuance, instead of 12 months, provided by the previous version of the Norms.

2. The extension of the validity of the building / demolition permit

The extension of the validity of the building / demolition permit can now be requested with at least 15 business days before the expiration of the validity period.

3. Simplification of the authorization procedure

The approvals / endorsements for urban utilities – technical-urban and communal household services - as well as for confirming the insurance of the essential quality requirements in construction can be also issued through the CSA now, not only directly from the suppliers/administrators.

4. Works which do not need authorization

Based on the amended Norms, the works which do not need authorization are those provided in art. 11 of Law no. 50/1991. Such works shall be executed only in compliance with the legislation, the conditions stipulated by the technical design and execution norms in force regarding the construction field and with the specific legislation regarding the gas and energy field.

5. Approvals and endorsements issued by the suppliers / administrators of urban utilities

In order to prepare the documentation for the authorization of the execution of the construction works, it is necessary to obtain the approvals / endorsements of the suppliers / administrators of urban utilities for the insurance and connection / branching to the urban infrastructure, under the conditions and with the restrictions for the operational safety, imposed by the characteristics and the location of energy or technological transport / distribution / networks from the establishment area.
In case the applicant chooses to obtain the approvals and endorsements through the CSA, the fees and charges for issuing the approvals and endorsements provided in the urbanism certificate are borne by the applicant, the amounts of the fees being determined by the issuers of the approvals and endorsements. The fees and charges are determined according to the legal regulations specific to each approval area and they are communicated to the issuers of building / demolition permits.

6. The verification of the documentation submitted in order to obtain the urban planning certificate

In addition to the previous version of the regulations, the documentation submitted in order to obtain the urban planning certificate has been amended to include:

(i) an updated cadastral plan excerpt, respectively land book excerpt for information, issued upon request by the cadastral and real estate publicity office, if the buildings are registered with the cadastral and real estate records;
(ii) a zonal plan at one of the following scales: 1:10,000, 1:5,000, 1:2,000, 1:1,000, as the case may be, issued upon request to the cadaster and real estate publicity office, if the buildings are not registered with the cadastral and real estate publicity records;
(iii) other documents provided under special laws.

If the submitted documentation is incomplete or has insufficient identification elements, this aspect is notified in writing to the applicant, also mentioning the missing elements in the documentation. The notification shall be made within 5 days from the date the submission was registered. According to the former provisions, the submitted documentation should have been returned to the applicant for further completion. However, the new amendments no longer mention the restitution of the documentation in view of its completion.

7. Drafting of the urban planning certificate

According to a new provision in the Norms, the urban planning certificate should include the regime for updating / modifying the urban planning documents and the related local regulations in a specific situation, respectively if the applicant's objective is not covered by the approved urban planning documentation. In such case, the applicant will be informed whether:
- a. the provisions of the approved documentation cannot be modified;
- b. an opportunity approval should be obtained, subject to the conditions of Law no. 350/2001 regarding the planning of the territory and the urban planning, with the subsequent modifications and completions;
- c. it is possible to elaborate a modified urban planning documentation, without obtaining an opportunity approval according to Law no. 350/2001 regarding the planning of the territory and the urban planning, with the subsequent modifications and completions.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

UK: Recent Changes To The Laws Regarding Construction Quality And Authorization