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Romanian Justice Reform under CVM's rule. Innovative vision of the New Civil Code in matters of property rights.

Acquiring property right and other real rights by usurpation

Acquisitive prescription, or usurpation, is defined in doctrine as the original way of acquiring property or other real rights over immovable property by possession by a person under the conditions and in the time prescribed by law [1].

As we shall see in the NCC system, we observe fundamental differences in the scope of this mode of acquiring the property right [2].

In the old Civil Code system, usurpation was of two kinds: usurpation of 30 years, governed by art. 1890 Civil Code and usurpation of 10 up to 20 years, governed by art. 1895 Civil Code [3].

NCC governs the acquisition of real rights by usurpation in Chapter III, entitled Effects of possession, in Title VIII--Possession, using a legal system fully consistent with that of the land books. According to art. 928 NCC "under this chapter, the possessor may acquire ownership of the possessed property or, where appropriate, the fruit produced by it". Also, art. 929 states that "No goods can be subject to usurpation, which, before or after taking possession, were declared legally inalienable".

These first two articles in the chapter on the effects of possession in the New Civil Code, albeit in a relatively concise manner, regulate the usurpation institution as a means of acquiring the property right over a good or over the fruit produced by he good in question, as the effect of possession exercised on that track.

The New Civil Code defines in art. 929 the types of goods that can be acquired by usurpation, using as scope of this institution only inalienable goods category.

Thus, goods that cannot be subject to usurpation are either inalienable property belonging to the public sector or private goods declared inalienable by law.

Using the extensive interpretation and also per a contrario of these provisions, it appears undeniable that the property right over all other categories of goods may be acquired by usurpation, only stating that the goods in question are subject to be legally possessed.

According to art. 916 par. (1) NCC, possession is the factual exercise the prerogatives of ownership by the person who possesses a good and behaves towards it as an owner [4]. According to legal regulations, can be subject to possession only the corporal individually determined goods, which are in the civil circuit. Consequently, the inapplicability of usurpation extends both to inalienable goods and to the generic goods and the universalities of such goods.

In the scope of usurpation cannot be included the use of real rights such as free use and the lease right established under private property rights belonging to the state or administrative-territorial units.

It should be noted that the birth of these rights is subject to a regime of public law and as such makes it incompatible with the acquisition by usurpation [5].

In the NCC system, a notable difference from the provisions of the old Civil Code is the introduction of mobile goods usurpation, together with the well-known, real estate usurpation.

Regulation for the first time on a movable property acquisition by usurpation is an alternative in case the conditions for acquiring mobile goods as a result of possession in good faith are not fulfilled.

In the NCC is taking over the real state usurpation classification used in the Decree-Law no. 115/1938 on the application of acquisitive prescription in Transilvania and Bucovina. Are taken over in this way the tabular and the extra-tabular usurpation, the only difference between the two legal systems being the time interval required for acquisition, decreased considerably in NCC.

Extra-tabular real estate usurpation

Usurpation regulated by the text of art. 930 par. (1) NCC is called extra-tabular because it operates outside the entries of the land books. This statement should not be understood like the registration of usurpation in the land books is not required, but like this is a way of acquiring property by a person not registered as proprietor in the land book.

According to the legislator's will, the extra-tabular usurpation is applicable only regarding the property right and its respectively dismemberments such as usufruct, use, habitation and servitude. Extra-tabular usurpation does not serve the other real rights, as listed in art. 551 NCC.

According to art. 930 par. (1) NCC "The property right over a immobile good and its dismemberments may be registered in the land book by effect of usurpation, for the benefit of the one who possessed it for 10 years if:

a) the proprietor registered in the land book has died or, where appropriate, has ceased to exist;

b) was registered in the land book the declaration of renunciation for the property ;

c) the immobile good was not registered in any land registry."

Also in par. (2) of the same legal text is stated that: "In all cases, the usurpator can only acquire the property right if he has made application for registration in the land book before a third party has registered its request for registration of rights in its favor based on a legitimate cause, during or even after expiry of the usurpation term."

From the very term that defines this kind of usurpation, its scope is clear, namely the lack of registration of ownership or other real rights in the land books, for the reasons listed in par.1 of art. 930.

It is noted that the legislator considered both the situation where the good desired to be usurpated was never registered in the land book and practical cases in which entries in the land books no longer conform to reality (if the owner registered in the land book no longer exists and there isn't a new entry to its successors or acquirers in private--art. 930 paragraph 1 letter a) or if the property owner registers in the land register an authentic declaration renouncing his right to ownership of that good (as provided by art. 930 paragraph 1 letter. b, which is in fact a way of ending the property right covered by art. 562 par. 2 NCC and a situation of loss of possession regulated by art. 921 NCC).

A situation that was not foreseen in the old Civil Code, concerning the case where a legal person is the owner of the property is now considered in the provisions of art. 930 paragraph 1 letter. a, where it refers also to the termination of the legal person, in addition to the premise of individual's death as a cause of registration of property right by the effect of extra-tabular usurpation.

As regards the time within property can be acquired by extra-tabular usurpation, legislators established a period of 10 years, reduced to half of the 20-year period provided for in Decree-Law no. 115/1938 for the same kind of usurpation.

The time from when acquisitive prescription begins to run varies by situation-premise on which the request for registration of property is founded, starting either from the date of death or closure of the owner of the property or from the date of registration in the land book of the declaration of renunciation of property, or, in the absence of entries in the land books, since the actual possession of the usurpator begins on the immobile good.

This means that within these 10 years, the exercised possession of the usurpator is meant to be useful, according to art. 922 NCC. Not affecting its usefulness requires possession free of vices--discontinuity, secretly or by violence, the existence of a period during which possession was flawed leading to suspending the usucapion term and, by default deducting it from the 10 years' term.

Acquisition of ownership or its dismemberments by extra-tabular usurpation is achieved through the means of an application by which the usurpator seeks registration in the land book of his property rights or a dismemberment of ownership right, prior fulfilling one of the conditions and provided by art. 930 par. 1 letter. a-c. the usurpator must apply his request before another application is brought by a third party, making irrelevant the situation that the third party submitted his application during the flow period of 10 years or after its fulfillment.

However, it is necessary to note that any application of the third party must have a fair basis for acquiring title to property that is subject to extra-tabular usurpation; if the third party does not have such a legitimate title, registration in the land book of the usurpator is to be made without taking into account the request made by a third party without meeting legal requirements.

After the expiration of the legal term for extra-tabular usurpation, the usurpator does not automatically acquire immovable property in question, but this expiration produces only the birth of a right of option for the usurpator, in the purposes of formulating or not the application for registration in the land book of his usurpation.

The acquisition of property right or of one of its dismemberments by extra-tabular usurpation occurs by the effect of the registration in the land book.

The rights-constituent effect of the land book registration title is also a way of acquiring ownership, according to art. 557 par. 4 NCC.

Tabular usurpation, taking over the contents of Decree-Law no. 115/1938, is based on entries in the land books, but they are restricted to those registrations made without a legitimate cause, so without a valid title.

Tabular usurpation, governed by the provisions of art. NCC 931, operates in favor of the person who is registered in the land book, not against the person who already enjoys the presumption born from an existing land book registration [6].

According to art. 931 par. (1) NCC: "Rights of the one that was registered, without legitimate cause, in the land book, as the owner of a property or other real right holder, cannot be disputed when the person registered in good faith for the property possessed the immobile good for 5 years after the time of filing the application, if his possession was uncorrupted." Also the legislator is showing that: "It is enough that good faith exists at the time of filing the registration application and at the time of entry into possession" [7].

Unlike extra-tabular usurpation, for the tabular one, the pre-existence of registration of usurpator's right in the land book is a prerequisite, but not with the title that was the basis for registration being valid. Invalidity of the title may come either as a cause of nullity of the legal act (void of form or substance) or as a legal act was concluded with a non-proprietary (the acquirer believes that the real owner shall forward his ownership of the property, but the seller is not the legitimate owner and therefore the contract is null).

For either of these two cases of invalidity of the title, there is an explicit requirement of the law for the third party acquirer as to invoking tabular usurpation: good faith.

If the purchaser was aware at the time of concluding the contract of its causes of inefficiency, then he is purchaser in bad faith and art. 931 par. 1 is not satisfied.

However, the par. 2 of the article makes clear two points when good faith from the usurpator must exist: at the start of possession over the property (so at the start of flow period of) and at the time of application for registration in the land book (after reaching tabular usurpation legal term).

There is clear, however, that between the two moments is found the entire time flow of usurpation; as a consequence, it appears that if, during the term flow, the usurpator knows its title is flawed, regardless of reason, good faith ceases and the stipulation of its existence at the time the request for registration in the land book was made is no longer satisfied.

The period prescribed by law for possession of the property to be converted into tabular usurpation is 5 years, during which the usurpator's possession must be uncorrupted, so useful.

As in extra-tabular usurpation, corrupted possession suspends the term for acquisitive prescription; the affected period of the time is not taken into account for the statutory period of five years.

The special effect of usurpation is the validation of the original invalid title under which registration in the land book was made.

Also, this effect appears as a punishment for lack of interest of people that could be prejudiced or affected by the invalid act would have interest to use legal means to fight the effects of such an unjust act.

The acquirer of the good would not have interest to invoke the illegality of the title, since its establishment invalidates his registration of the land book and restores previous situation for the parties, facts that make him lose both the possession of immobile good and the right to invoke tabular usurpation.

For both types of property usurpation, the provisions of the old code apply also in the NCC in terms of possessions' junction. In the current regulation, possessions' junction is found in art. 933.

Thus, the legislator states that: "Every holder is deemed to start in his person a new possession, whether the property has been transmitted as universal or particular" [8].

Also, NCC takes over the Civil Code's conception that possessions' junction [9] will operate only if there is a legal relationship between the possessor and his author [10]. Possessions' junction involves the addition to the term of actual (own) possession of the time the good was possessed by his author.

It is however noted that the legislator does not specify in the NCC the time until the usurpation's effects are retroactive [11].

Notes:

[1] For more details on Constitutional dispositions concerning fundamental rights and liberties (as revised in 2003) see Anca Parmena Olimid, Politica romaneasca dupa 1989, Aius Publishing House, Craiova, 2009, pp. 63-65

[2] Ibidem

[3] For more details see C. Birsan, op. cit., p. 316 and following; I. P. Filipescu, A. I. Filipescu, op. cit., p. 314 and following.

[4] For a detailed approach on possession see D. Gherasim, Teoria generala a posesiei, Ed. A.R.S. Romania, Bucuresti, 1986

[5] R. Peptan, Uzucapiunea in Noul Cod civil, in Dreptul Magazine no. 8/2010, p. 13

[6] V. Stoica, Drept civil. Drepturile reale principale, vol. 2, Ed. Humanitas, Bucuresti, 2006, p. 465

[7] Art. 931 alin. (2) NCC

[8] Art. 933 alin. (1) NCC

[9] Possesion consists of two elements, a material one--corpus and an intentional one--animus, to see, D. Gherasim, op. cit., p. 20 and following.

[10] According to art. 933 alin. (2) NCC: "Although, to invoke usurpation, the actual possessor may unite his possession with his author's one"

[11] R. Peptan, op. cit., p. 39.

Irina Olivia POPESCU

University of Craiova, Faculty of Law and Administrative Sciences

"Nicolae Titulescu", Craiova, Romania.

Email: oliviapopescu1982@yahoo.com
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Title Annotation:ROMANIA TODAY: POLITICS, LAW AND ADMINISTRATION
Author:Popescu, Irina Olivia
Publication:Revista de Stiinte Politice
Article Type:Report
Date:Jan 1, 2011
Words:2463
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