The New Civil Code – Law no.287/2009 – (“NCC”), in force since the 1st of October, 2011, brought significant changes in the field of real estate.
The new provisions are applicable to (i) the deeds or facts concluded/committed after the coming into force of the NCC; (ii) the prescriptions, lapses, usucaptions started after the date of the NCC’s entering in force; (iii) the legal situations occurred after the coming into force of the NCC, and, in some cases, the future effects of the legal situations born before the coming into force of the NCC.
The immovable is defined in a large sense (as land plots, springs, watercourses, plantations caught by roots, constructions and everything is permanently incorporated/fixed in such immovable, as mentioned) and stricto sensu (as one or more neighbouring parcels owned by the same landlord, located on the territory of a territorial-administrative unit and under the same cadastral number).
By regulating the cases, conditions and the legal regime of the registrations with the Land Registry, the NCC aims to extend the role of the Land Registry in the constitution, modification and extinction of the in rem rights over an immovable.[1]
The major changes are presented hereinafter:
The constitutive effect of the registration with the Land Registry
Unless the law expressly provides otherwise, the NCC[2] establishes that the ownership right over an immovable is acquired by the registration with the immovable’s registry (hereinafter the “Land Book”).[3]
An excerpt from the Land Book shall be deemed as the proof of the ownership right over an immovable. (Article 565).
Similarly, the registration or the deletion of a right in rem over an immovable shall value the acquisition or the loss of that right in rem over an immovable (Article 885, pa.1).
According to the law for the application of the NCC (Law no. 71/2011), the above-mentioned provisions will be applicable only after the finalization of the cadastral works for each territorial-administrative unit and the opening of the immovable’s Land Book.
Therefore, for the time being and up to that time (not determined by law) the registration with the Land Book will ensure the publicity towards the third parties, as up to the coming into force of the NCC.
The acquisitive effect of the registration in case of good-faith
As a rule, the publicity does not validate the right, the deed or fact submitted or admitted for publishing. However, the NCC, in accordance with the existent Romanian jurisprudence in this matter, provides that the publicity may produce acquisitive effects in favour of a third party, as a good-faith acquirer, in the cases and conditions expressly provided by law.[4]
Further on, any person who acquired an in rem right registered with the Land Book on the basis of an onerous title shall be deemed as the owner of the right registered in his/her favour, even if the right of its author is deleted from the Land Book, following the request of the real owner.
The NCC provides expressly that a third party-acquirer can be deemed as acting in good-faith only if at the time of the request to register the right in his/her favour, certain conditions are met: (i) no claim challenging the content of the Land Book is registered; (ii) the content of the Land Book does not justify a correction of the registration in the favour of another person; (iii) the acquirer was not acknowledged, in any way, about the inaccuracy of the Land Book’s content.[5]
Whenever a good-faith acquirer of an in rem right over an immovable, duly registered with the Land Book, exercises a non-vicious possession over that immovable for a 5 years period starting from the date of the application for registration with the Land Book, his right could not be anymore challenged, even if his right was not lawfully registered.
Even that in some matters, the NCC provisions are not quite comprehensible or complete, fact which will necessary requests the contribution of the jurisprudence and nevertheless, of a legislation supporting the implementation of the NCC rules, the above-mentioned provisions succeed an important step in the process of ensuring the transparency and security in the field of real estate.
Mariana Anghel
[2] Article 557, pa.4