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THE TRANSMISSION OF THE INHERITANCE POSSESSION.

1. Introduction. Acquirement of the Inheritance Possession. Seizin. Heirs Who Have a Seizin

The acquirement of inheritance rights by heirs, from the opening of the inheritance, shall be done regardless of the fact that heirs have or do not have seizin, but here comes the problem of exercising those rights, namely the transmission of heritage possession.

In order to know the emergence moment of the seizin, it is necessary to distinguish between heirs who legally possess the seizin of inheritance and the other heirs who do not have seizin, the latter having to request the vesting order through the release of the certificate of possession (Lazar, 2011: 101-102). Pursuant to article 1125 Civil Code, in addition to the actual possession exercised over the successional patrimony, the seizin gives to seizin heirs, the right to administrate this heritage and to exercise the rights and actions of the deceased.

Under article 1126 Civil Code, seizin heirs are the surviving spouse and the privileged descendants and ascendants. The old regulation qualified the descendants and ascendants of the deceased in article 653 paragraph 1, as seizin heirs (Bacaci and Comanita, 2006: 230).

The inheritance possession must not be confused with the notion of possession as the first does not imply the meeting of the two elements required by law to usurp, the actual possession and intention to possess the goods for himself, since this is about the exercise of successional rights (Baias et al, 2012: 1171).

The seizin represents the power conferred by law to legal heirs of the deceased who are able to administer and exercise the rights and actions of the deceased, from the opening of the inheritance, without needing any prior check of the quality of successor, by notary or judicial way (Chirica, 2014: 505-506). The quality of seizin heir is conditioned by the concrete vocation to inheritance, so that those who are removed from the inheritance, by the presence of other heirs of a closer rank or of nearer degree or those who renounce at inheritance or are unworthy, cannot have the quality of seizin heirs.

The disinherited reserve heir keeps the quality of seizin heir as he collects the reserve, as legal heir (Deak and Popescu, 2014: 134).

The seizin has individual character whereas it is conferred upon heirs according to the order in which they are called to inheritance, but also successive character because, when the preferred successor in rank waives, the seizin goes to the next (Baias et al, 2012: 1171). Seizin rules are mandatory, so they cannot be changed by the will of the person leaving the inheritance.

2. Effects of the Seizin

A. The seizin heir is entitled to administer the patrimony and exercise all patrimonial actions of the deceased, without needing to fulfil any formalities, i.e. in principle before getting the heir certificate.

However, article 1049 Civil Code provides that when it comes to money, valuables or securities, specialized institutions will not be able to proceed to the delivery of the legacy covering the above, except by judgment or heir certificate which prove the validity of the testamentary disposition and the quality of legatee, the provisions relating to report and reduction being applicable.

If special measures were taken for the conservation of certain goods pursuant to article 1117-1118 Civil Code, the seizin heir would be prevented from actually exercising the possession. B. The seizin heir can exercise, from the opening of the succession, all patrimonial actions belonging to the deceased and can be pursued by the succession creditors without the prior certification of the quality of heir, except for the situation provided in article 1104, i.e. when he had requested an inventory.

The seizin being divisible, the seizin heir can sue or be sued only for his share of the debt (Florescu, 2013: 211).

3. The Seizin Acquisition by Heirs Who Do Not Have a Seizin

If article 1126 Civil Code provides clearly that the surviving spouse, the privileged descendants and ascendants of the deceased are heirs, per a contrario, the other heirs with successional vocation are heirs who do not have a seizin.

Article 1127 Civil Code provides that the legal heirs, who do not have seizin, acquire the seizin only through the heir certificate, but with retroactive effect from the day of opening the inheritance. Acquiring the seizin and therefore, the heir certificate is achieved via inheritance proceedings (Lazar, 2011: 384-423) certified by the public notary competent under the law. Article 1127 paragraph 2 provides that, until the actual admission into possession of the inheritance, the heir who does not have a seizin, cannot be pursued, as heir. However, where appropriate, pursuant to article 1117 Civil Code, the legal heir who does not receive a seizin, can request the disposal of measures for the conservation of inheritable assets. In principle, the acquisition of the seizin by the legal heirs produces the same legal effects as in the situation of the legal seizin, from the date of opening the inheritance.

4. The Admission into Possession of the Universal Legatee

Pursuant to article 1128 par. 1 Civil Code, the universal legatee can request the admission into possession of the inheritance from the reserve heirs. If there are, no such heirs or they refuse, the universal legatee enters into possession of the inheritance through the release of the heir certificate according to the notary succession procedure, and, if they do not agree, the actual admission into possession will be achieved in court.

The acquisition of the seizin by the universal legatee must be required according to the above mentioned, even if he was legal heir, since he claims the inheritance based on the quality of testamentary heir, in order to gain more than his equal share and in that situation, he will no longer enjoy the seizin. However, if he is the only reserve heir, the request for admission into possession will be no longer necessary since he should address the request to himself (Baias et al, 2012: 1173). The universal legatee has the right, pursuant to article 1058 Civil Code, to the fruits of succession assets from the moment he requested the writ of possession or since it was handed over to him voluntarily.

5. The Admission into Possession of the Legatee under Universal Title

Pursuant to article 1128 paragraph 2, the universal legatee can request the admission into possession of the inheritance from the reserve heirs or, where applicable, from the universal legatee who entered into possession or from the non-reserved legal heirs who entered into possession of the inheritance, whether lawfully or through the heir certificate. If such heirs do not exist or refuse, the universal legatee enters into possession of the inheritance through the heir certificate.

Like the universal legatee, the legatee under universal title is entitled, under article 1058 Civil Code, to the fruits of successional assets from the moment he requested the writ of possession or since it was handed over to him voluntarily.

6. The Admission into Possession of the Legatee under Particular Title

Article 1129 Civil Code provides that the legatee under particular title enters upon possession of the legatee's object from the day it was handed over to him voluntarily or, failing that, from the day of submission of the request for delivery, to the court.

The legatee under particular title can request admission into actual possession to the reserve heirs, universal legatee, legatee by universal title who entered upon actual possession of the legacy or to non-reserved heirs who acquired the seizin and if the testator entitled another legatee under particular title with paying the legacy, the hand over will be asked to the latter, after entering into possession of the goods.

Regarding the fruits, provisions of article 1058 Civil Code are also applied, as in the case of the universal legatees or of the legatees under universal title.

It should be noted that if the legatee covers a liability like the release of the legatee from a debt to the deceased, the debt quashes from the opening of the inheritance. However, pursuant to article 1049 par. 2 Civil Code, specialized institutions will not be able to proceed to the delivery of the legacy covering money, stock or securities except by judgment or heir certificate which finds the validity of the testamentary disposition and the quality of legatee, the provisions relating to report and reduction being applicable. Pursuant to article 1059 Civil Code, the legatee under particular title of a determined individual asset acquires his property from the opening of the inheritance. In exchange, the legatee under particular title of a particular kind of property is the holder of a claim on the inheritance.

Thus, in the case of a real right over a determined individual asset, the legatee can capitalize his right from the opening of the inheritance against the holder of the asset through a real action for recovery if the right acquired is of property, or through a confessor action, if it is about anther real right (Deak and Popescu, 2014: 144).

If the legacy covers a claim, the legatee may obtain the execution of the legacy by personal action, of patrimonial nature, based on the will, brought against universal heirs or heirs under universal or exceptional title against the legatee under particular title commissioned by the testator with paying the legacy or against the third party debtor, if the legacy covers the testator's claim against him (Deak and Popescu, 2014: 144).

Pursuant to article 1061 par. 1 Civil Code, the property that is the object of a legacy on particular title is delivered with its accessories, in the same condition as at the date of opening the inheritance.

Pursuant to article 1067 Civil Code, the inheritance creditors are entitled to be paid with priority over the legatees. If legacies under particular title exceed the net assets of the inheritance, they will be reduced to the extent of overcoming, at the request of inheritance creditors or of the person who is required to execute them. In the case where, without knowing some specific debts or tasks of the inheritance, a legacy was executed, the legal or testamentary heir, the creditors or any interested person can request reimbursement from the legatee paid, if the legacy is to be reduced.

7. Heredity Petition

7.1 General considerations

In practice, it may happen that people whose rights of inheritance are challenged by others who claim the status of real heirs own the successional patrimony. In these situations, people who claim to be the real heirs have at hand an action called heredity petition, to take possession of the inheritance (Lazar, 2011: 102).

Thus, the heredity petition is the action of a person asking the court for recognition as heir or legatee of and for ordering the person holding the successional assets to return them, the rights claimed by the two sides being irreconcilable (Boroi and Stanciulescu, 2012: 657). Pursuant to article 1130 Civil Code, the heir under universal vocation or title can always get the recognition that he is the heir against any person who claiming that this recognition is based on the title of heir, possesses all or part of the assets of the successional patrimony.

Legatees under particular title, not having claims on the universality of succession, cannot use the heredity petition. They will capitalize their rights, as we have shown above, using the proceedings for recovery, the confessor action or the personal actions.

The defendant is the person who claims to be universal successor or successor under universal title possessing succession property, under that quality. If the defendant does not possess property as heir, but as the owner or holder of another real right, or owner, then the action will be for recovery, denying or possessory, even if the plaintiff has to prove his heirship (Florescu, 2013: 231). The heredity petition should not be confused with the action for partition, by which a petitioner heir claims his part of the legacy and the defendant disputes neither his heirship, nor the extent of the successional vocation of the petitioner. The heredity petition is different also from the personal action by which the petitioner asks the defendant to pay a debt of succession, in the situation where the defendant refuses to pay not because he would be heir, but because of the inexistence of the debt or its quashing in some other way.

The heredity petition presents the following legal features:

a.the heredity petition is a real action, which aims at depriving the apparent heir from the successional patrimony that he holds;

b.the heredity petition is a divisible action; where there are several successors, each successor acts in his own name, each successor defends himself in his own name and the judgment obtained is objectionable only to the parties in the trial;

c.the heredity petition is an extinctive imprescriptible action; the heir under universal vocation or universal title can always get the recognition of his heirship (article 1130 Civil Code).

Regarding the proof for heirship, the evidence allowed is the heir certificate, the will, the civil status documents and any other evidence allowed by law. With their help, the plaintiff must prove that it has the status of heir regarding the successional patrimony, his title being preferable or concurrent with that of the defendant (Deak and Popescu, 2014: 150-154).

7.2 Effects of the heredity petition

If the action is permissible, recognizing in this way the petitioner's heirship, he is entitled to demand the reimbursement of the successional property held by the defendant, who proved to be an apparent heir. But if the apparent heir concluded legal documents with third parties between the moment of opening the inheritance and the settlement date of the heredity petition, the effects of the judgment against third parties become an issue.

A. Effects between the real heir and the apparent heir

Pursuant to article 1131 par. 1 Civil Code, the recognition as heir obliges the holder under no title of the successional assets to the reimbursement of such assets by applying the rules provided in article 1635-1649 of the Civil Code.

In this situation, if the defendant was acting in good faith, he gets to keep the charged usufruct and refunds only the asset. If the asset was alienated for good consideration, the defendant will have to return what he received in return of the alienation.

The defendant is not liable for the total or partial destruction of the property, but if the property was insured, he will have to hand over the compensation received for destruction or the right to receive compensation.

If the defendant was acting in bad faith, meaning that he knew about the existence of heirs of nearer rank, he must return the fruits collected or to be collected, before the exercise of the action. The asset will have to be returned in kind, and if it has been alienated or destroyed, he will have to repay the value of the assets deemed at the moment of their reception, destruction or alienation, whichever is of greater value.

If the goods perished in a fortuitous manner, the defendant is released from the obligation of reimbursement if it is proved that the goods would have been destroyed or in the heir's possession, but the compensation received or the right to charge it, will have to be reimbursed, in case the property was insured.

B. Effects between the real heir and third parties

If during the period the successional assets were held by the apparent heir, he concluded legal documents with third parties, the effects between the real heir and third parties become an issue.

Pursuant to article 1131 par. 2 of the Civil Code, regarding the legal documents concluded between the holder under no title, of successional patrimony and third parties, the provisions of article 960 par. 3 of the Civil Code shall apply accordingly.

Article 960 in par. 3 states that the acts of conservation, as well as those of management concluded between the apparent heir and third parties are available, to the extent that they are at the advantage of heirs. The provisions for good consideration concluded between the undignified heir and third parties, purchasers of good faith, are maintained, rules of the land register matter being, however, applicable.

If the object of a provision for good consideration is a movable and if the third party is acting in good faith, then the latter keeps the good. The disposition provisions free of charge that concern a building, concluded between the apparent heir and the third party, even in good faith, is abolished retroactively.

Thus, if the legal document concluded with a third party is maintained, then the apparent heir will have to refund the equivalent, and if the document is abolished with retrospective effect, the third party will dispose of the action for eviction against the apparent heir.

REFERENCES

Bacaci, Al., and Comanita, Gh. (2006), Civil Law. Successions. 2nd Edition, C.H. Beck Publishing House.

Baias, Fl. A., Chelaru, E., Constantinovici, R., and Macovei, I. (2012), The new Civil Code. Commentary on articles. article 1-2664, C.H. Beck Publishing House.

Boroi, G., and Stanciulescu, L. (2012), Institutions of civil law to regulate the new Civil Code. Bucharest: Hamangiu Publishing House.

Chirica, D. (2014), Treaty of civil law. Successions and liberalities, C.H. Beck Publishing House.

Deak, Fr., and Popescu, R. (2014), Treaty of successional law under the new Civil Code. Third edition updated and completed. Volume III. Heritage transmission and share, Bucharest: Universul Juridic Publishing House.

Florescu, D .C. (2013), Successional law in the new Civil Code. Third edition revised and completed, Bucharest: Universul Juridic Publishing House.

Lazar, P. (2011), Birth and death in civil law, Constanta: Europolis Publishing House.

Lazar, P. (2011), Civil Law. Successions. Course in the ID-IFR technology, Bucharest: Publishing House of the Romania de Maine Foundation.

PATRICK RARES LAZAR

patrick_lazar@yahoo.com

Spiru Haret University
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Author:Lazar, Patrick Rares
Publication:Contemporary Readings in Law and Social Justice
Article Type:Report
Geographic Code:4EXRO
Date:Jul 1, 2017
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