Legal effects of Registration

A) Internal effects: effects to the right itself and the entitlement

a) Registration and the process of transfer/acquisition of property rights

Romanian Civil Code came into force on 01.10.2010 establishes that entry in the land registry of property rights and other real rights have constitutive effect and is mandatory for immovables.

According to art 885 civil code, real rights on real estate, both, between the parties and against third parties, can be acquired only after their registration in the land registry.

In present should be considered the provisions of art. 56 of Law No. 71 / 2011 on the implementation of Law no. 287/2009 on the Civil Code which states that

(1)The provisions of the Civil Code regarding the acquisition of rights to immovables by the effect of their registration in the land registry applies only after completion of cadastre for each administrative territorial unit and opening on request or ex officio, the land registries for the respective immovables, according with the Law of cadastre and real estate advertising no. 7/1996, republished, as amended and supplemented.

(2) Until the date referred to in paragraph (1) entry in the land registry the rights of property and other real rights on the basis of documents which were transmitted, modified or validly constituted, is only purpose of publicity (opposability) against third parties.

b) Effects to legitimize the owner

Legal presumptions. Registration as evidence of the right

The transfer of the property right between the parties is made on the moment of signing the contract in front of the public notary and the entry in the land registry is made in order to assure the publicity of the real rights against the world.

Effects of registration and possession: adverse possession

Until the date of completion of cadastre for each administrative territorial unit, the registrations in land registry have only opposability effect and after this date will have constitutive effect.

For possessions started before Civil Code which came into force in 2010, the court of justice will give a judgment finding acquisition of ownership of a property by adverse possession.

This final decision is a genuine mode of acquiring property right of an immovable.
Until the completion of cadastral works for each administrative-territorial unit, the final judgment is a valid title of property and will be registered in the land registry to assure opposability against third parties.

According to art 930 Civil Code in force, those who possessed 10 years can become owners of an immovable through adverse possession (named extratabulară).

The court will issue a judgment after verifies the fulfillment of legal requirements. Who possessed under art. 930 civil code becomes tabular owner from the date of entry of the right in the land registry based on this judgment.

The tabular usucapio is regulated by art. 931 Civil Code and refers to the owner in good faith that possessed an immovable for 5 years from the date of registration of his/her request. The final judgement will be the property title based on which ownership will be registered in the land registry.

Remedies and procedural actions derived from registration: actions derived from registration.

1. When an entry in the land registry does not correspond to the actual legal situation may require its rectification. By rectification means removal, straightening or correct any inaccurate entries made in the land registry.

Art. 908 civil code lists cases in which the rectification of permanent registration (“ intabulare” ) and provisional registration (“ înscriere provizorie” ) and shows the procedure to be followed in such cases.

Rectifying action can be introduced simultaneously or separately, after being admitted substantive action, where appropriate.

Substantive action may be an action for annulment, termination, reduction or any other cause of action based on the ineffectiveness of the legal act.

They shall be settled by the competent court according to the civil procedure code.

Effects admission rectification action are shown in art. 910 civil code.

Any interested person may request the rectification a notation, in the lack of the consent of the owner in accordance with art. 908 civil code.

Rectification will made pursuant to a final judgment and the right of this action is imprescriptible.

Correction of material errorscommittedduringentriesmadein the land registry, other than thoselisted inart. 908civil codeas the basis ofaction forrectificationcan headon requestorex officio.

In accordance with article 32 of Law No.7 / 1996 updated, the person who believes that was done a wrong registration in the Land Registry by the registrar may bring an application for review against the decision to the chief registrar. If the person is dissatisfied with the solution of chief registrar, in response, may submit a complaint against the decision of the chief registrar to the court of law. Against the sentence passed by the court of civil law, appeal may be brought.

According to art. 915 paragraph 1 of the Civil Code, the person harmed by an civil offense, even by mistake, in the preservation and management of land registry, may bring an civil action (ex delicto action) in front of court of law.

One may request the court to oblige the office of cadastre and land registration having the territorial jurisdiction and the person responsible for the damage to pay compensation, jointly and severally.

This court action (ex delicto action) may be brought only if the damage suffered as a result of the civil offence committed could not be removed, in whole or in part, by exercising the actions and remedies provided by law against the wrong registration.

B) External effects-effects to third parties

Negative effect: opposing effect of registered rights against non registered rights.

The transfer of property right or other real right of an immovable will be made only in authentic form and is subject to the rules of land registry.

Real rights which are registered in land registry are opposable erga omnes, as opposed to those are not registered in the land registry.

After completion of the cadastre for each territorial administrative unit, registration of ownership and other real rights in the land registry will be required for the transfer of these rights.

Registration in land registry will create a legal presumption (iuris et de iure) concerning the transfer of real rights.

Positive effect. Indefeasibility principle. Bona fides effect. Requirements

We cannot speak of the irrevocability principle in the case of an entry in land registry.

Indefeasibility principle is an effect of the legal act and is a consequence of the binding force principle of the legal act.

This principle requires that if the legal document was signed by two or more parties, it may be terminated solely with the agreement of all contracting parties.

Art. 901 civil code establishes a presumption that anyone who in good faith has acquired a real right registered in the land registry through a legal onerous act, will be declared the right holder.
Paragraph (2) of above mentioned article sets out the conditions under which the third party acquirer is considered in good faith.

At the same time, bona fides is a condition in order to obtain ownership of a property by adverse possession stipulated by the former civil code and also in the case tabular usucapio regulated by civil code in force.

C) Different kinds of registration and its effects:

a) Class of title

b) Type of entry

According to article 881 civil code there are 3 types of registrations in the land register: notation ( rom.” Notare”), permanent registration (rom.intabularea) and provisional registration (rom.” inscriere provizorie”).

Provisional and permanent registration refers the tabular rights (lat. ut tabular), while notation refers to the registration of other rights, acts, facts or legal relations in connection with the immovable properties included in land registry.
Provisional registration and notation are made only in cases specifically provided by law.
Notation that refers to personal rights (in personam) or other legal acts relating to immovable property registered in land registry becomes, in cases stipulated by law, opposable to third parties or, if necessary, is made known to them for information purposes.

They are stipulated by art.902 civil code.
There are recordings for opposability which has only information effect and can be recorded in land registry, but without the opposability against third parties to depend on enrollment and are stipulated by art.903 civil code.

c) First registration limitations

After the date of completion of cadastre for each administrative territorial unit the registrations in land registry will have constitutive effect. Before this date the registration in land registry has only opposability effect.

As we mentioned above, according to art 915 paragraph 1 of the Civil Code, the person harmed by an civil offense, even by mistake, in the preservation and management of land registry, may bring an civil action (ex delicto action) in front of court of law.

This court action (ex delicto action) may be brought only if the damage suffered as a result of the civil offence committed could not be removed, in whole or in part, by exercising the actions and remedies provided by law against the wrong registration.

d) Type of information: physical data/ legal data, associated data…     

Romanian LR provides associated information, as cadastre (technical part) and land registry (legal part) constitutes a joint system.

Technical information provided:

–        Cadastral id

–        Coordinates in Stereographic 70 system

–        Use type of land

–        Area

–        Premises description

Legal information:

–        Real rights over immovable

–        Rank of the real rights

–        Property right dismemberments (use, usufructs, habitation, servitudes, superficia)

–        Legal restrictions

–        Encumbrances, different kinds of annotations allowed by the law like (proceeding regarding the immovable, insolvency, seize, etc)