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The impossibility to recover the possession (recover in kind) of the properties taken over without title/without valid title by the Romanian State during 1945-1989, properties subsequently disposed under the Law nr.1995 to other natural persons

 

The incomplete and unfunctional system for granting reparative measures through an equivalent established by Laws nr.10/2001 and nr.247/2005

 

Violation of European Convention of Human Rights

 

                                                                                                                                                                                                      “Interrnational Property Day” – Bucharest - 2008

                                                                         International Union of Property Owners

                                                                                   

                                                                                                            Mihai Furtuna

                        Attorney at law – Bucharest Bar

 

 

 

ABUZIVE TAKEOVER OF PROPERTIES BY THE ROMANIAN STATE DURING 1945-1989

 

Most takeovers were made:

-         without title (take over in fact, without the existence of a legal act of taking), or

-         without valid title (by the existence of a normative act of taking, but who violates the provisions of national and international laws which guarantee the right property and without payment of any compensation;

 

 

LEGAL RESEARCH OF THE VALIDITY OF THE TITLE

 

Art.6 of the Law nr.213/1998 regarding the State property:

 

“   (1) Also belonging to the private or public domain of the state or of the territorial-administrative units shall be the goods acquired by the State in the 6 March 1945-22 December 1989 period, if they entered into the State's property on the grounds of a valid title, with observance of the Constitution, of the international treaties to which Romania was party, and of the laws in force at the date of their taking over by the State.

    (2) Goods taken over by the State without a valid title, those obtained by vitiation of consent inclusive, can be claimed by the former owners or their successors, unless they form the object of a special law of reparation.

    (3) The courts of law shall be competent to establish the validity of the title.”

 

If the takeover act does not meet the legality criteria above-mentioned, then the takeover is null, invalid.

 

 

 

THE CONSEQUENCES OF ESTABLISHING THE NULLITY (INVALIDITY) OF TAKEOVER ACTS

 

“Quod nullum est, nullum producit effectum”

 

Consequences:

 

·        The nullity retroactivity – nullity operates retroactively, up to the moment of the takeover, as if the takeover never existed.

The legal consequence of establishing the nullity of takeover act means that the persons whose properties were taken over without valid title maintain the quality of owner they had on the date of the takeover, without having the possession of the property.

 

·        The cancellation of not only the initial act (takeover by the state) but also of the subsequent act (sale-purchase contracts made by the third parties under the Law no.112/1995) - resoluto jure dantis, resolvitur jus accipientis. 

 

Following the establishment of nullity of the state title, which operates retroactively it, is obvious that the sale made under the Law no.125/1995 is tainted because the third party acquirer has contracted with a non owner.

The irregularities of the state title – nullity – turn over all act subsequently concluded.

The sale-purchase based on Law no.112/1995 is therefore null, when the object is a property taken over by the state without a valid title.

 

·        Restoring the previous situation – restitutio in integrum

 

 

BLOCKING THE RESTORATION OF THE PREVIOUS SITUATION – RESTITUTIO IN INTEGRUM

 

Restoring the previous situation – restitution in integrum – as the result of establishing the state title nullity is not possible, because, before the coming into force of the Law no.10/2001, the property has been alienated to third parties under the Law no.112/1995.

Normally, the sequence of the two laws should have been different, first to provide the restitution to former owners, and only if the property is not claimed or not restored to them, then to be offered for sale to tenants.

 

            I.          Law no.10/2001 – offers no solution for the recovery of possession - “restitution in integrum” – when the property was prior alienated under the Law no.112/1995, regulating only the ability to grant reparative measures through an equivalent – compensation.

           

Therefore, even if it proves that the takeover by the state is null, and the real owners has never lost the right of property, the Law no.10/2001 opposes to the recovery of possession, giving priority to the title of the tenant who bought under the Law no.112/1995, establishing only reparative measures through an equivalent for the real owner.

            The solution to provide reparative measures through an equivalent is inefficient and bureaucratic, the institutions established in 2005 are not functioning even today (Proprietatea Fund).

 

 

II.                Action claim of possession based on Romanian common law (art.480 Romanian Civil Code)

 

 

In the absence of the possibility of recovery the possession to the procedure established by Law no.10/2001, the rightful owners were forced to act through action claim based on common law, against the tenants who had bought the buildings under Law no.112/1995. This action claim was qualified in the legal doctrine as “action claim by comparing titles”.

The action claim is the most powerful way by which the deprived owner can regain the possession of his property.

As a result of the nullity state title establishment, with normal consequence of the survival right of the initial owner, and because the state has alienated the property to a third person under the Law no.112/1995, an unacceptable situation has occurred: one building – two different owners.

 

Through this action claim, the rightful owner demands that his right be prevalent compared to that of the tenant’s under the Law no.112/1995, because the first title comes from the real owner as far the second title comes from a no owner – the Romanian State.

 

The possibility to use this action to recover the possession of property was blocked by the Decision no.33/09.06.2008 adopted by the Supreme Court of Justice – United Sections – appeal in the interest of law. Through this decision the action claim by comparing the titles was declared inadmissible.

According to article no. 329 of the Romanian Code of Civil Procedure, the solution is compulsory to all courts in the national judicial system, when called upon to solve such a cause.

Thus, the solution is a political solution and not a legal one, because all the arguments that sustain this solution clearly violate the classical principles of Romanian Civil Code, the provisions of the Romanian Constitution, of the European Convention of Human Rights and of the Universal Declaration of Human Rights which guarantee the right of ownership.

 

 

PROPRIETATEA FUND – A NONOPERATIONAL INSTITUTION, THE ASSETS OF WHICH WILL BE OVERCOME BY THE CLAIMS LEVEL

 

 

Blocking the possibility of possession recovery directs the owner’s claims to Proprietatea Fund.

The Proprietatea Fund was created three years ago to compensate people whose properties were illegally taken during the communist regime. The compensations are to be made in shares representing the current value of the buildings that are not returned in possession.

At the present the Proprietatea Fund, financial investment company, is not operational, not listed in the Stock Exchange as the legislation imposes on the Romanian capital markets. (This is one of the reasons that determined uncountable convictions of Romanian state in front of European Court of Human Rights). In this moment not even a fund administrator was appointed, an essential condition for listing.

More over, there are all prerequisites that the Proprietatea Fund cannot cover all the claims raised under the Law no. 10/2001.

Thus, despite the fact that 201.749 claims were raised nationwide under the Law no.10/2001, at 31.oct.2008 only 2002 individuals are registered as shareholders of the Fund,  who already hold 20.71% of the share capital of the Fund.

It is obvious that the claims of the compensation will by far exceed the capital fund. This moment is not very far and we will face the absence of any compensation for the properties that were abusively taken over by the state during 1945-1989.

 

 

VIOLATING THE EUROPEAN CONVENTION OF HUMAN RIGHTS

 

 

The judicial and legislative blockade of the recovery of possession combined with an unfunctional and bureaucratic compensation system established by Law no. 10/2001 and Law no. 247/2005 determines  the continuous violation of European Convention of Human Rights and many other complaints against Romanian State in front of European Court of Human Rights.

 

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