22
Mar
475

This topic is of great importance, especially when it comes to the accesion of goods, more exactly the case when a person builds a photovoltaic park on another person's land without having any right of superficies granted by the owner of the land.

            We believe that photovoltaic panels are inmovable assets according to the Romanian law, and therefore are autonomous durable works, for the following reasons:

            According to Order No. 700/2014 issued by the president of the Land Registry Office, photovoltaic parks are to be registered in the Land Register as constructions; these constructions will be registered in the Land Register based on the cadastral documentation, the building permit and the acceptance protocol regarding the completion of the works. The borders of the area where the photovoltaic parks are built will be represented in the layout plan and in the “Buildings – Entries/Edit – Mentions” section the mention “system with n photovoltaic panels” is to be aggregated.

Usually, the owners of photovoltaic parks pay the tax on special constructions and on buildings, in compliance with the Government Resolution No. 421/2014.

Art. 578 of the New Civil Code distinguishes between autonomous or added works, each of these having either a durable or a temporary character. Autonomous works are defined by the Civil Code as being constructions, plantations and any other standalone works that are done on a land. The Civil Code stipulates that added works are not standalone works. Therefore, all constructions and plantations are standalone works, which means that, since they are considered to be constructions, the panels are not added, but they are standalone works.

 In these circumstances, the panels are considered to be constructions, standalone works; these are not added.

            Regarding the inclusion of these works in one of the two categories (durable or temporary), according to the duration for which these works are carried out, considering that this case is about constructions which need authorization in order to be built, we believe that the distinction can be made in compliance with the provisions of Law. No. 50/1991 regarding the authorization of the execution of construction works.

            Establishing whether the constructions have a definitive or a temporary character can be done by interpreting per a contrario the provisions of art. 3 par. 1 and 2, as well as those from item 7 of the Addendum No. 2 of Law No. 50/1991.

Item 7 of Addendum No. 2 of Law 50/1991 defines certain specialized terms used within the Law and has the following contents:

Constructions with temporary character

The constructions authorised as such, regardless of the nature of the materials that were used which, by the specific of the sheltered function or due to the urban requirements imposed by the public authority, have a limited period of existence, specified also by the building permit.

Usually, constructions with temporary character are carried out by using materials and parts that allow the fast disassembly for the purpose of bringing the land to its initial state (metallic confections, wood parts, plastic materials or other such materials) and are of small sizes. The following are considered to be constructions with temporary character: kiosks, stands, cabins, exposure places situated on streets or spaces, display bodies and panels, commercials and firms, sunblind, pergola or other such alike. For the purpose of this law, the performance of temporary constructions shall be authorized under the same conditions in which definitive constructions are authorized.

Therefore, the first paragraph cited herein establishes the necessary conditions for qualifying a construction as being with temporary character, while the second paragraph offers guidance and examples of such constructions that have a limited duration.

At the same time, the provisions of article 3 par. 2 indicate the categories of constructions for which the building permit is issued based on the technical documentation with simplified content, these ones being the temporary constructions listed at art. 3 par. 1 let. d), g) and h):

d) enclosures and urban furniture, green area arrangement, playgrounds, markets and other works of arrangement of public spaces;

g) organising tent camps, little houses or trailers;

h) temporary construction works: kiosks, stands, cabins, exposure places, display bodies and panels, commercials and firms, sunblind, pergola situated on public spaces and streets, household annexes as well as household annexes of agricultural exploitations situated outside the built-up area.” 

We mention the fact that the construction of the photovoltaic parks is included in the works mentioned at art. 3 par. 1, let. c) of Law No. 50/1991, respectively: “works related to construction, reconstruction, modification, extension, repair, modernization and rehabilitation regarding communication ways of any type, forestry roads, art works, technical-urbanistic networks and endowments, branches and connectors to the utilities networks, hydro technical works, riverbed arrangements, land improvement works, infrastructure installation works, works for new capacities to produce, transport and distribute electric energy and/or thermal energy, as well as rehabilitation and retechnologisation of the existing ones.” 

Therefore, by interpreting per a contrario the dispositions of art. 3 of Law No. 50/1991, the conclusion is that the photovoltaic parks that were built are definitive works.

         Moreover, the definitive character of the works results from interpreting the provisions of item 7 of Addendum No. 2 to Law No. 50/1991; the specific of the function sheltered imposing an unlimited duration of operation of the installations. In addition to this, the building permit does not provide a limited duration of these works.

                Having established that in this case we are dealing with a definitive construction, art. 581-582 of the Romanian New Civil Code are to be applied, articles regarding the carrying out of autonomous durable works on another person’s land, in which the essential element regarding the rights of the owner of the land is the good faith or the bad faith, as the case may be, of the builder.

Dehelean Marius - Attorney-at-law

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