Investor Guide to Europe 2014
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TYPES of oWnERSHIP
Î
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 funciara
)
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 or a group of properties divided into co-ownership units
(cote-parti)
. 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 under the condition to observe its desi-
gnated use and to allow the other co-owners to exercise their
right. Its characteristic is that 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
(cota-parte)
of the property.
Time-shared ownership
•
Consists of exercising ownership over an asset, successively
and repeatedly, at determined time intervals, which need not
necessarily be equal, by more different persons. Such time-sha-
red ownership rights must be registered with the Land Registry
according to the general applicable rules.
RIGHTS affECTInG oWnERSHIP
Î
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 transfer-
red 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.
Î
Superficies
(superficie)
•
Is the right to own or to build upon or under another’s land buil-
dings, 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.
•
This right must be registered with the local Land Registry and
may have a duration of maximum 99 years, after which it may
be prolonged.
Î
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.
Î
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)
.
•
This right cannot be assigned to a third party and the property
may not be leased.
Î
Mortgage
(ipoteca)
•
Is a security encumbering the asset, which entitles the benefi-
ciary 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 urmarire)
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 that may be created over the same
property.
•
In the case of mortgages over immovables, the registration with
the Land Registry is mandatory. The rank (and thus the prefe-
rence order) depends on the order of registration with the Land
Registry.
Î
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 or, in some particular cases, by
agreement between the pre-emptor and the owner.
PRoPERTY LaW
