Is a Superficies Right Sufficient Legal Title for Obtaining a Building Permit?
The new Code on Territorial Planning, Urbanism and Construction (the “CATUC”), which entered into force on August 25, 2026, has raised significant concerns regarding the types of land rights that may constitute a sufficient legal basis for obtaining a building permit. In particular, questions have arisen as to whether the right of superficies — a cornerstone of energy project development in Romania — continues to qualify for construction permitting.
The Problem: A Narrow Reading of Art. 245(3)
Art. 245(3) of the CATUC provides that the execution of construction works is permitted to “holders of the right of ownership and to holders of other rights in rem corresponding to public property, subject to the constitutive legal act or with the owner’s consent.” Read literally, the provision appears to limit the right to carry out construction works to two categories: (a) owners and (b) holders of rights in rem corresponding to public property, namely the rights of concession, administration and gratuitous use.
By contrast, an earlier version of Art. 245(3), as debated in Parliament, used broader language, referring generically to “rights in rem” without limiting the provision to rights corresponding to public property. The narrower wording ultimately included in the enacted text was introduced through a specific amendment adopted during the plenary session. Whether this narrowing was deliberate or an unintended consequence of the legislative process remains uncertain.
This raises the question of whether rights such as superficies or easements can continue to serve as a legal basis for obtaining a building permit. The apparently limitative character of Art. 245(3) is further reinforced by Art. 248, which expressly states that the building permit may be issued only upon the request of a holder of one of the rights enumerated under Art. 245 — thereby suggesting that no other right in rem may serve as a legal basis for an application for a building permit.
Nevertheless, limiting the construction right to owners and holders of rights in rem over public property sits uneasily with the fact that the urbanism certificate for the construction of buildings (other than energy infrastructure) — which is the starting point of the building permitting process — may be issued to any holder of a right in rem over the relevant land. Excluding superficies at the building permit stage while recognising it at the urbanism certificate stage would create an apparent internal inconsistency within the CATUC.
Moreover, excluding superficies from the scope of building permit eligibility would render inapplicable the mere concept of superficies which, according to the Civil Code, entails the right to use the land for the purpose of carrying out construction works.
The Impact on Energy Projects
The issue is particularly acute for energy investors, for whom superficies is a standard mechanism for securing land rights for project development. Power generation and storage installations are routinely developed on land held under superficies arrangements, without the developer acquiring ownership of the underlying plots.
Grid connection infrastructure — including substations and overhead lines — is similarly affected. Such infrastructure is typically owned by grid operators, and the standard mechanism reflected in grid connection agreements follows a well-established sequence: a superficies right is first secured over the relevant land parcels in favour of the grid operator; a building permit is then obtained on that basis in the operator’s name; the infrastructure is constructed; and ownership of the relevant land is transferred to the operator upon completion. If superficies can no longer serve as a sufficient legal basis for obtaining a building permit, this entire chain would be disrupted. This is particularly significant given that grid operators are generally reluctant to accept ownership of the land before having certainty that the relevant grid infrastructure is successfully constructed.
The Ministry’s Position
Following a joint working session with the National Agency for Cadastre and Land Registration and the National Union of Notaries Public, the Ministry of Development, Public Works and Administration published on its website a set of clarifications regarding the application of the CATUC.
On the issue at hand, the Ministry took the position that the enumeration of rights in Art. 245 is not exhaustive and should be interpreted in conjunction with the Civil Code, such that it encompasses other rights in rem carrying construction-related prerogatives, including the right of superficies.
Conclusions
The Ministry’s position provides a pragmatic approach to an issue that could otherwise have significant implications for the real estate and energy sectors. A blanket exclusion of superficies from the scope of Art. 245(3) could disrupt projects already in advanced stages of development and create significant uncertainty for investors.
That said, the interpretation provided by the Ministry is difficult to reconcile with the current wording of Art. 245(3) and Art. 248. Moreover, the Ministry’s clarifications have limited legal force and cannot, in themselves, resolve an apparent inconsistency in the enacted legislation.
In our view, therefore, the Ministry’s clarifications should be followed by a formal amendment to Art. 245 or, at a minimum, by secondary legislation issued for the application of the CATUC expressly clarifying that other rights in rem — including the right of superficies or an easement — may serve as a legal basis for obtaining a building permit.
