Considerations on the limits of the private property right and its implications in the concept of urban renewal

• Author: Smarandita - Elena Ciudin- Colta
• Position: Faculty of Law, Comparative Private Law Department, 'Alexandru Ioan Cuza' University of Iasi, Romania
• Pages: 32-40

AGORA International Journal of Juridical Sciences, www. juridicaljournal.univagora.ro

ISSN 1843-570X, E-ISSN 2067-7677

No. 4 (2014), pp. 32-40

32

CONSIDERATIONS ON THE LIMITS OF THE PRIVATE PROPERTY

RIGHT AND ITS IMPLICATIONS IN THE CONCEPT OF URBAN RENEWAL

S. E. Ciudin - Cola

Smrndia - Elena Ciudin- Cola

Faculty of Law, Comparative Private Law Department

“Alexandru Ioan Cuza” University of Iai, Romania

*Correspondence: Smrndia- Elena Ciudin- Cola, Alexandru Ioan Cuza University of Iai,

11 Carol I St., Iai, Romania

E-mail: smarandaro@yahoo.com

Abstract:

The purpose of our paper is to analyze the concept of “urban renewal”, defined by the

Wallonian code on land use planning, urban planning, patrimony and energy and by the

provisions of the French laws as the phenomenon by means of which towns and cities evolve

in order to face new community needs. Urban renewal is closely connected to servitudes and

private property limits, to which we will refer in the light of the provisions of the New Civil

Code of Romania.

Key words: urban renewal, private servitude, urban planning servitude, principle

of non indemnification of urban planning servitude effects.

Introduction

Just like living organisms, cities seem to be in an incessant renewal process, which

allows them to survive, despite the ever-changing nature of human activities. The concrete

materialization of this transformation consists of hygienic conditions in buildings, access

road development, etc. The analysis of the social trends and legal regulations on property

rights, servitudes and property right limits throughout Europe is a real challenge. In response

to heavy doctrine criticism, the New Romanian Civil Code made the due distinction between

the legal limits of the property right and the actual servitudes.

Private Servitudes and Urban Planning Servitudes

According to the provisions of art. 755 of the New Romanian Civil Code, servitude is

“the grant of a non-possessory property interest that grants the servitude holder permission to

use another person’s land”. Any servitude usually involves two pieces of land belonging to

different owners, where one serves as the servientestate that “bears the burden” and the other

is the dominant estate, which benefits from the grant of the servitude and has permission to

use the servient land in some manner. However, there may be cases when the servitudes are

reciprocal. According to art. 755 par. (2) of the New Romanian Civil Code, by the grant of the

servitude, the dominant estate may increase its economic value or comfort.

As a novelty, the New Romanian Civil Code restricts the servitudes’ category to

conventional servitudes, whereas natural and legal servitudes become legal private property

right limits, distinctively regulated by the provisions of art. 555 of the New Romanian Civil

Code. This law amendment is the result of constant criticism coming from legal advisors who,

relying on the classification provided by the 1865 Civil Code, showed that neither natural nor

legal servitudes are dismemberments (“dezmembrminte”) of the property right related to the

servient estate, but they are merely limitations of the property right

1

. As a rule, while

1

Alexandru- Sorin Ciobanu, Aspecte specifice privind regimul domeniului public în România i în Fr ana,

“Universul Juridic” Publishing House, Bucharest, 2012, p. 107.