78 | Investor Guide to Europe 2014
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This right is granted by the Romanian Civil Code to the lessee
of an agricultural lease and to co-owners or neighbours of the
owner selling forestry property (the neighbours must also own
forestry).
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Tenants right
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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 sti-
pulated, 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.
aCQuISITIon PRoCESS:
KEY STaGES
Foreign investors wishing to carry out real estate transactions do not
need any prior authorisation. Limitations for foreigners.
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negotiations
•
If a confidential information is communicated during the nego-
tiations the other party is obliged not to disclose it even if the
agreement is not concluded.
•
The would-be purchaser issues a letter of intent which may be
indicative or binding.
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The Romanian Civil Code provides the possibility to initiate,
conduct and end negotiations. The parties have the obligation to
conduct negotiations in good faith, whereas this obligation may
not be contractually or otherwise limited.
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The party who initiates, conducts of ends negotiations contrary
to good faith can be held responsible for the prejudice caused to
the other party.
•
If during the negotiations a party insists on a certain element
of the agreement or formal aspects, the agreement will not be
concluded until these aspects are agreed upon.
•
If the parties have agreed upon the essential elements of the
agreement, the secondary elements may be subsequently deter-
mined by third parties or by a court of law. However, the Roma-
nian Civil Code does not define the notion of secondary elements
of an agreement.
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Preliminary contracts
•
Preliminary sale contracts provide for the terms and conditions
of the sale, whereas the final transfer remains subject to the
fulfilment of certain conditions.
Put option or unilateral undertaking to sell
(promisiunea de vânzare)
•
Is an agreement by which the promissory-seller irrevocably
undertakes to sell the property for a specified price, whereas
the beneficiary has the option of purchasing (or not purchasing)
such property during the given time period.
•
If the beneficiary expresses his/her option to purchase and the
promissory-seller refuses, the beneficiary may request a court
of law to issue a decision replacing the notarised agreement
by which the ownership is transferred to the beneficiary, if all
the validity conditions of the sale were met by the put option.
The request in court must be introduced within 6 months from
the date when the sale-purchase agreement should have been
concluded.
Call option or unilateral undertaking to purchase
(promisiunea de cumparare)
•
Is the agreement by which the promissory-purchaser under-
takes to purchase the property for a specified price, if the owner
decides to sell. The owner has no obligations deriving from this
agreement, being able to sell to any third party.
Bilateral undertaking to sell
(promisiunea bilaterala
de vânzare-cumparare)
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Is the reciprocal undertaking of the parties to sell, respectively
to purchase the property, where both parties are committed to
transfer the property.
•
The transfer remains subject only to the fulfilment of validity
conditions of the sale-purchase agreement.
option agreement
(pact de optiune)
•
Is the agreement by which a promissor
(promitent/ofertant)
makes an irrevocable offer to conclude in the future a agreement
having as object a determined good, offer which the beneficiary
is free to accept or refuse in a determined term. The promissor
will be obliged to prefer the beneficiary if he decides to sell.
•
In this period the promissor may not transfer the property.
•
The option agreement must be concluded in the form and
with the content requested for the validity of the sale-purchase
agreement.
•
The sale-purchase agreement will be concluded by statement of
acceptance issued in the form necessary for the validity of the
sale-purchase agreement.
•
If the option agreement concerns tabular rights
(drepturi tabu-
lare)
(ie. rights over immovables) the agreement must be noted
in the Land Registry.
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Sale-purchase agreement
•
Is the deed according to which the ownership of a property is
transferred from the seller to the purchaser; it is necessarily
notarised.
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The terms and conditions of the sale which have been agreed
at the stage of the preliminary agreements (if such preliminary
agreement existed) should be observed by the parties. However,
the parties may commonly agree to amend the terms and condi-
tions of the sale purchase agreement.
•
The sale shall be registered with the Land Registry by the notary.
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Warranties (i) for claims over the property aiming to evict the
purchaser and (ii) for hidden defects, are the two mandatory
warranties which by law are incumbent upon the seller of an
immovable property.
CoMMERCIaL LEaSES
Leases of buildings used for commercial purposes are covered by
the provisions of the Romanian Civil Code. Romanian law does not
make any difference between the lease in general and this type of
