93 / 132
PROPERTY LAW
Types of ownership
Freehold
Ownership
• Romanian Civil Code defines ownership as the right to
possess, use and dispose of a property exclusively, in the most
absolute and perpetual manner, in the limits described by the
law, subject only to a non-prohibited use.
• Any title, transfer or charge on the ownership right must be
registered with the local Land Registry (carte funciară).
Co-ownership
• Co-ownership can be regular co-ownership, forced co-
ownership and indivisible co-ownership.
–
–
Regular co-ownership
is the ownership by various
persons of a property divided into co-ownership
units (cote-părți). Each co-owner holds a share of the
ownership right and may freely dispose of his/her share.
The law presumes the co-ownership units to be equal
until evidence to the contrary. Each co-owner may act
to preserve the entire property or group of properties,
without requiring the consent of the others. Use and
management of the asset generally requires the consent
of the other co-owners, while disposition acts affecting
the entire property always require all the co-owners’
consent. It has a temporary character, any of the co-
owners being able to request the termination of the co-
ownership status by partitioning the property.
–
–
Forced co-ownership
is the ownership by which each
co-owner may use the property subject to observing
its designated use and allowing the other co-owners to
exercise their right. It has a permanent character, the
co-owners not being thus able to partition such property.
Each co-owner has a right to use the common areas and
shares the related service charges.
–
–
Indivisible co-ownership
results from legal provisions
or legal acts, the ownership right belonging to several
persons at the same time, without any of these persons
being the owner of a determined ownership unit (cotă-
parte) of the property.
Time-shared ownership
• Consists of exercising ownership over an asset, successively
and repeatedly, at determined time intervals, not necessarily
equal, by more different persons. It must be registered with
the Land Registry according to the general applicable rules.
Rights affecting ownership
Easement (servitute)
• Is a burden imposed upon a property, for the use and utility of
another property belonging to another owner.
• Is exercised to the detriment of the property assets which
they encumber – servient tenement (fond aservit) – and to the
benefit of adjoining assets which they enhance – dominant
tenement (fond dominant).
• As an attribute of the right of ownership, easements are
transferred with the related tenement.
• While the owner of a dominant tenement may, at its expense,
carry out any works required to use or to preserve the
easement, it is not entitled to do anything to aggravate the
situation of the servient tenement; the owner of the servient
tenement must allow the easement to be exercised without
doing anything to restrict it.
Superficies (superficie)
• Is the right to own or to build upon or under another’s land
buildings, structures or plantations. The beneficiary of the
superficies right will have a right of use over the land.
• The superficies right may be acquired through a legal
document or usucapio or another way provided by law.
• It must be registered with the Land Registry and may have a
duration of maximum 99 years, which may be prolonged.
Usufruct (uzufruct)
• Is the right of a person different than the owner to use the
property of another person and to obtain its benefits (fructe)
as the owner would, with the obligation to preserve the
substance of the property.
• The usufruct right can be acquired through a legal document
or usucapio or another way provided in the law.
• The duration of this right varies as it is constituted in favour
of a legal person or an individual. For individuals, the right is
presumed to be lifelong, whereas for legal persons it may have
duration of maximum 30 years.
Use (uzul)
• Is the right to use the property of another person and to
receive the benefits (fructe) both natural and industrial, only
for the use of the beneficiary and his/her family (right intuitu
personae); it cannot be assigned to a third party and the
property may not be leased.
Mortgage (ipoteca)
• Is a security encumbering the asset, which entitles the
beneficiary to a preferential right over other creditors in the
event of a forced sale of the relevant asset.
• Confers a right to trace (drept de urmărire) entitling a secured
creditor to take possession of the asset offered as security,
even if it is in the possession of a third party.
• Any property in Romania may be mortgaged and there is no
limit on the number of mortgages over the same property.
• In the case of mortgages over immovables, the registration
with the Land Registry is mandatory. The rank (and thus the
preference order) depends on the order of registration with
the Land Registry.
Pre-emption right
• Is the statutory option provided to certain public authorities
or individuals to substitute an acquirer in a real estate transfer
for purposes of general public interest (for public authorities)
or personal interest.
• This right is provided by law –to the lessee of an agricultural
lease and to co-owners or neighbours of the owner selling
agricultural land or in case of selling forestry property,
co-owners or neighbours (the neighbours must also own
forestry) – or, in some particular cases, by agreement between
the pre-emptor and the owner. Romanian state benefits of the
pre-emption right in case of sale of the agricultural land or
forestry property.
Tenants right
• The tenant may oppose to the new owner his/her rights
deriving from the lease agreement if the termination of the
lease in the case of alienation was not expressly stipulated.
Even if it was stipulated, the tenant may oppose his/her
rights to the new owner for a term twice as long as the one
applicable for the termination of the lease agreement.
93
Investors Guide to Europe 2015