REAL ESTATE PUBLICITY

Transcription

1 74 Law Review vol. VII, special issue, December 2017, p NICUŞOR CRĂCIUN REAL ESTATE PUBLICITY Senior Lecturer Nicuşor CRĂCIUN 1 Abstract The present article aims to emphasize the importance or real estate publicity, by protecting the static and dynamic security of the civil circuit in regard to immobile goods. It also describes the importance of the effect of the constitutive of rights principle, which is believed to be the most important of the land registry principles, as regulated by the Civil Code and which provides the publicity system a certain power and judicial importance, as opposed to the mere registration in the land register which only provides opposability to third parties. Keywords: real estate publicity, cadastral register, constitutive of right effect, opposability to third parties, land register. 1. Registration in the cadastral register The purpose of any legal regulation is prevention. The more clearly a certain right is regulated, the more respected and correctly exercised it is. The need for security of important legal relations has led to their publicity. Real rights, such as the property right are, by nature, opposable erga omnes. In order to be opposed to third parties, the legal act which regulates such rights needs to be brought to the knowledge of third parties, thus the need for publicity became more and more obvious. Informing third parties of the act was performed by solemn formalities or by a certain type of publicity. This need was particularly significant in case of real rights over immobile goods. The economic life sometimes implies that immobile goods are subject to selling, mortgage, rental; all the acts by which the operation of passing, forming, changing or ending immobile real rights both inter vivos and mortis causa must be guaranteed by the state by its institutions. Just as important, these changes in regard to the holders of the immobile real rights must be brought to everyone s knowledge. For these reasons, along with private immobile properties, the concept of real estate publicity appeared. The means by which security is ensured in legal operations regarding immobile goods are the publicity and the formalism of certain sales. The reason for publicity is the interest of both people and societies to ensure immobile goods of high value and significant importance. 1 Transylvania University of Brasov, Department of Law, nicusor.craciun@unitbv.ro

2 Real estate publicity 75 Real estate publicity is an ensemble of means regulated by law, through which the evidence, security and opposability to third parties is ensured in regard to acts which create, transmit or end immobile real rights. The system of real estate publicity aims to protect the dynamic security of the civil circuit in regard to immobile goods. Legal literature has defined static security as the protection of existing rights over a good and dynamic security as the protection of rights which are acquired in the future in regard to that certain good. According to the principles of consensus and the autonomous will of the parties, the transmission of the real right is produced by the simple express of consent by the parties, as they reach an agreement of wills, without the need for further formalities or the material transmission of the good. Even if the legal act does not cause effect in regard to third parties - as the rights which result from this act are not placed in the patrimony of third parties and third parties can t be forced to acknowledge a legal act which they did not participate in - however, they will still be obliged to respect the existence of this act as a social and legal reality of the legal situations created by the will of the parties who participated in the conclusion of the legal act, personally or by representative. Real estate publicity aims to ensure the certainty of the creation and transmission of real rights over immobile goods by informing the interested parties of the legal situation of the goods which are subject of real rights; thus, successive transmission of goods which defraud the interests of third parties is avoided. Secondly, it aims to create an ample inventory of technical, economic and legal manner, of immobile goods, which allows for the efficient use and exploitation of these goods. Thirdly, it allows organs of the state to exercise permanent knowledge of the legal situation of immobile goods. Fourthly, this system protects the rights of parties who would be interested in acquiring immobile goods as they can verify and be permanently informed of the real legal situation of the immobile good which they are interested in purchasing. The essential function of the real estate publicity system is that of informing third parties, as any interested person has the possibility to be informed of an act or legal situation, about a change of a certain legal reality The principle of the constitutive of rights effect. The constitutive or transfer of property effect of the Cadastral Register registration was reintroduced in the Romanian system of law after it gave rise to numerous disputes in the jurisprudence and the doctrine which was previous to the new Civil Code. The provisions of the current Civil Code regulate a rigorous and complete regime of real estate publicity, as it has a real character and the effects of the registration in the Cadastral Register creates rights between the parties. This constitutive effect will ensure both the dynamic security of the civil circuit, but mostly the static security of the civil circuit. The differences between the

3 76 NICUŞOR CRĂCIUN present regulation of the new Civil Code and the Law Decree no 115/1938 are minor. Under the regime of the Law-Decree no 115/1938, in Transylvania and Bukovina, the temporary registration had a constitutive effect, whereas registration was only performed with the purpose of opposability. In exchange, in the system of land registers, all registration was meant to create opposability to third parties. Under the regime of Law no 7/1996, registration acquires opposability effect, just as it was the case with land registers, and the deletion of the rights would also cause the constitutive of rights effect. Nowadays, the principle of the constitutive of rights effect is regulated in the new Civil Code, in article 885 and 886 and it entails the fact that real rights over immobile goods are acquired, modified or ended between parties and in regard to third parties, by the registration and deletion from the Cadastral Register, based on the act which justifies this action. The new Civil Code states that Under the reserve of contrary legal regulations, real rights over immobile goods registered in the Cadastral Register are acquired both between parties and in regard to third parties, only by their registration in the Cadastral Register, based on the act or fact which justifies the registration. Real rights can be lost or ended only by their deletion from the cadastral register, with consent from the holder of the right, expressed in authentic form. This consent is not necessary if the right is ended by reaching the term or by the death of the holder or the end of legal existence, in case of a company. Article 886 which regulates the change of an immobile real right states that: The change of an immobile real right is achieved in accordance to the rules established for acquiring or ending real rights, if the law does not state otherwise 2. From the very beginning, we see that, as opposed to the Law-Decree no 115/1938, the New Civil Code no longer regulates the conditions of the existence of consent of the person 3 against who registration is achieved. At first sight, it appears to be a positive fact, as the existence of this clause when registering a good was considered to be useless. However, the lack of a second consent is fundamentally different from the immobile real estate publicity system of the new Civil Code as opposed to the Law-Decree 115. We can essentially state that the new Civil Code states substantial regulations of law regarding the cadastral registration and its effects, whereas the regulations regarding registration in the cadastral register are those stated in Law no 7/1996. According to article 56 first alignment of Law no 7/2011, the provisions of article 885 of the Civil Code regarding the constitutive effect of the cadastral registration is applied only if the cadastral works are finalized for every 2 Article 885 of the Civil Code. 3 According to R. Matefi, Civil law. The general part. Syntheses and applications, p. 63, the consent is that fundamental and general condition at the conclusion of a civil legal act law designating the party's decision to conclude a specific legal act.

4 Real estate publicity 77 administrative and territorial unit and the creation, by own initiative or by demand, of the cadastral registers for that certain immobile. Registration in the Cadastral Register is necessary not only for opposability, but also for causing the constitutive or transfer of property effect of the act or fact between parties. This principle of the constitutive effect is considered to be the most important of the principles of the real estate publicity systems and the one which provided the publicity system with a certain power and a special legal importance. Thus, by this effect associated to cadastral registers, real immobile rights are created, changed, transmitted or ended at the time of the registration request (article 890 of the Civil Code) and not at the time the authentic act was concluded, the court decisions is communicated or any act which can be the basis of registration of real rights is concluded. If, for example, an immobile good is sold, the buyer will not be considered as owner at the time the legal act which regulates transmission of property was concluded (selling contract, donation, exchange), but at the time he registers his right in the cadastral register. Once the real right is registered, it will cause effect erga omnes, as it can be opposed to third parties and contracting parties from the time it is registered. Thus, the law distinguishes between the legal act or fact, the one which gives rise to the obligation of transmitting, changing or modifying a tabular right and the way in which this right can be acquired or ended, namely the registration of the creation, modification or termination of the immobile right for the use of another party. The constitutive effect 4 is applied to all tabular rights, regardless of whether it is a principal real right or an accessory, like the property right or any of its accessories such as use, habit, superficies or mortgage. However, the constitutive effect is not of absolute character; for example, in case of the retention right of an immobile registered in the cadastral register, the new Civil Code states that retention right is opposable to third parties without any publicity formality 5. Another exception from this principle is the fact that real rights resulting from inheritance, natural accession, foreclosure, expropriation are acquired without cadastral registration. 1.2 The opposability effect in regard to third parties This effect is regulated by Law no 7/1996 which states that the integrated cadastral registration system achieves real estate publicity which ensures opposability of immobile real rights, personal rights, acts and legal acts, as well as 4 For other considerations regarding the legal act constitutive of rights see R. Matefi, The theory of the civil legal act, Hamangiu Publishing House, Bucharest, 2017, p Article 2498 of the Civil Code.

5 78 NICUŞOR CRĂCIUN any legal relations which are subject to publicity, in regard to immobile goods 6 and also Law no 71/2011, article 56 first alignment, which states that: until the cadastral works for each administrative and territorial unit are finalized and the cadastral registers are created, whether by request or own initiative, cadastral registration of the property right and any other real right is performed based on the documents by which these rights were created, transmitted or validly changed; this is performed only with the purpose of ensuring opposability for third parties. Unlike the Law-Decree no 115/1938, loyal to the constitutive effect of the registration of real rights in the cadastral register, Law no 7/1996 has unfortunately adopted the solution created by the personal publicity system, namely opposability of the real rights registered in the cadastral register. In Romanian private law, third parties opposability ensures full efficiency of a certain legal situation. As long as the real estate publicity formalities stated by Law no 7/1996 regarding cadastre and real estate publicity, with subsequent changes, are nor met, it can only cause relative effects between the parties of the acts and not erga omnes. In case these formalities are fulfilled, full legal effects can be produced, as the legal act or fact causes legal effects between the parties and in relation to third parties. In case of real rights over immobile goods, without performing the real estate publicity formalities, the right is not strengthened and the holder of the right can t enjoy full legal protection. However, the essential, informative or declarative function is kept, as it is absorbed by the opposability function in relation to third parties. In other words, the legal effect regarding the real rights of the concluded acts will produce: - from the time an agreement of will is reached - from the time the act is concluded in the law required ad validitatem form. The effect of opposability in regard to third parties is achieved from the moment the act is registered in the cadastral register. The real right acquired over that certain immobile good is not to be opposed to third parties of good will. The holder of the newly acquired right will not be able to exercise his rights unless after registration was performed. 2. The registration system and the real estate publicity system through cadastral registers 2.1. The system of real estate registration Romanian law adopted the real estate publicity system by the cadastral register by the 1864 Civil Code (article , article 1295, article 1394, articles 6 Article 2 letter d) of Law no 7/1996.

6 Real estate publicity ), the Civil Procedure Code (articles ). These registers are also called inscription registers. It is not a personal publicity register of real immobile rights, as registers are kept in the names of the owners and not by immobile. This is why the legal situation of the immobile can only be found out by knowing the names of successive owners and by searching their names, the type of right which was transmitted or formed in regard to that certain good. Such an operation often proves to be both difficult and troublesome. As publicity was performed in regard to people and not goods, it is also called personal publicity. Publicity was performed by the transcription and inscription in law regulated registers: the transcription registers, the inscription register, the commandment transcription register regarding immobile goods. Transcription. Transcription was that certain operation of full copying of legal acts which allowed for the transmission of property rights over an immobile good, thus creating a main real right. Not all legal operations were subject to transcription. The following were excepted from fulfilling this obligation: successor transmission (whether legal or testamentary), the division acts, if the immobile was to be given to one of the co owners, court decisions which were declarative of rights, acquiring real rights by legal deeds: usucapio and immobile accession. Transcription was performed in the order the acts were filed. Presently, the transcription registers are replaced with folders where the acts which are subject to transcription are kept, along with their filed requests, in the order in which they were filed. Inscription. Inscription is made in the inscription register and entails the recording or reproducing of several important parts or clauses from the legal acts. Only those clauses which regard special privileges or mortgage were subject to inscription. However, there were exceptions from this rule, namely the privilege of the seller as it was subject to transcription. The effect of transcription and inscription. Under the conditions of article 182 of the Civil Code, the acts which transmit property, if transcribed, were opposable to third parties. Between parties and their legal successors, the legal act would cause effect from the time is concluded, according to the principle of the relativity of the effects of the legal acts, without the need for transcription and inscription. In case of transmission or formation of the same real right in a successive manner, in favor of two or more people, the principle qui prior tempore potior jure is applied. Namely, if the same right was successively passed on towards several people, the person who filed for transcription first would be the one who acquires the right.

7 80 NICUŞOR CRĂCIUN The disadvantages of the system of personal publicity Given its person character, this system presented deficiencies and practical inconveniences in regard to the effects and security, the most significant ones are listed below: - a series of legal acts were not subject to publicity, which caused this system to only be applied partially and not fully. Thus, the following were not subject to transcription: succession, division of goods, court decisions, relative annulment acts and rescission acts. - registers were kept in the name of the owners and not by immobile. This is why, in order to know the legal situation of a certain immobile, all successive owners must be known, thus proving to be a somewhat difficult activity; the omission of a previous owner can remove all publicity operations performed by all subsequent owners, if the owner consented to the transmission but did not reach agreement with the new owner, thus forming a probatio diabolica. - not performing the transcription and inscription formalities was not sanctioned by law, as the only sanction was non opposability to third parties. - the publicity offices which functioned along courts were not legally able to verify the validity of the act which was presented for registration, which makes such a registration of relative character. The legal act was simply brought to the knowledge of third parties, without the validity of the act or the existence of the right to be valid by publication. - if an immobile was successively sold and in bad faith to several people, property belonged to the person who was first to perform publicity of the act, even if of relative value and of doubtful title. Until the new cadastral registers were created, in regions were transcriptions and inscriptions were still performed, privileges and legal mortgages, sequestration, foreclosure, the complaints for protection of real rights as well as acts and facts regarding personal rights or any other legal relations in regard to this immobile will continue to be registered in the old registers, with respect of the provisions of the Civil Code and Law no 7/1996. Inscription in transcription registers is performed on demand based on justifying acts, by drafting an act of registration. According to the law, from the time the electronic cadastral registers were created, the transcription-inscription registers are replaced with the new cadastral registers. The old registers are kept in the archive of the territorial office and can be consulted for the history of a certain immobile goods. In the regions with immobile transcription and inscription, the holder of rights registered in the old registers will request transcription of their rights in the new cadastral registers, within 30 days from the time it was posted.

8 Real estate publicity The publicity system by cadastral registers The inconveniences of this system are mostly removed and a superior degree of certainty in ensured through the system of cadastral registries which - as any real estate publicity system - is based on the topographical (cadastral) identification of immobile and achieves the full and complete immobile publicity of the transmissions and constitution of real immobile goods. The publicity system of cadastral registers is a real publicity system, which belongs to German law unlike the consensual personal publicity system which was passed under the influence of the French Napoleon Code. The notion of cadastral register appeared as an official and public register which describes an immobile and the real right, as well as the personal rights, facts and other legal relations, but only in the expressly regulated cases. The cadastral registers are the central point of the legal relations by which real rights are formed, passed, changed or ended and are meant to provide a certain and complete information on the legal conditions regarding a certain immobile. This information entails the individualization of the good and its content, the identity of the person who is entitled to exercise a right over that good, the title on which this right is founded, some restrictions of exercising the right because of the personal situation of the holder, the potential mortgage of this good. The cadastral registers, traditionally called founding books - called as such given the legal traditions originates in the Latin work fundus, which means property over land. After Transylvania was incorporated by the Austrian Empire, the Leopold Diploma of 1781, thought to be the first fundamental law for this historic province introduced cadastral registers: first in 1794, in the border territories which were subject to Austrian law (Nasaud area, the so-called Hungarian regions) called by the Vienna Chancellery as Landtafel Patent; in 1870 in the other Austrian law territories of Ardeal, and in 1855 in Banat, Crisana, Satu Mare and Maramures, which were until that point subject to habitual law passed by popular traditions to the Romanian population, thus being applied at the same time as local Hungarian law. From a legislative perspective, the cadastral regime was regulated by the 1811 Civil Code, the 1794, 1855 and 1870 ordinances, as well as local laws. In Bukovina, which was an Austrian territory in 1812, the law of 1873 adopts a similar model based on the Germanic system. After the Great Unification of December 1 st, , the extension of the cadastral registers system was extended throughout the entire country. The Council formed in Sibiu after the administrative take over of Transylvania on April 2 nd, 1920 maintained this system in Transylvania. 7 Concerning the legislative unification carried out in the context of the Great Unification, see C. I. Murzea, R. Matefi, Evolution of the Romanian State and Law, Hamangiu Publishing House, Bucharest, 2015, p. 232.

9 82 NICUŞOR CRĂCIUN Law no 93/1933 aimed to create modern cadastre throughout the entire country based on the institution of cadastral registers which was superior to the system of the old kingdom, as the remarkable political figures of those times aimed to create a unified real system of publicity for Romania with the borders it had at the time. Unfortunately, the objectives which are established as a common desire came along extremely slowly (as opposed to the record time works of Transylvania and Hungary, as ordered by king Joseph the second in 1876 which were finalized within 3 years). Finally, the works were abandoned around the time of the Second World War, given the tragic events which occurred. Romania did not manage to create a national cadastre system and introduce a unified cadastral register system until the present time, although this would entirely correspond to the attribute of national unified state regulated by the first article of the Constitution. By two different laws, no 23/1933 and no 115/1938 the attempt to create a modern cadastral register system was materialized; these attempts were not finalized as the general cadastre of the country was not created. In lack of national cadastre, the Law Decree no 115/1938 could only be enforced in Transylvania, Banat and Bukovina. In Transylvania, the Law Decree no 115/1938 for the unification of the provisions regarding the cadastral register was drafted as a general law regarding the cadastral books of the old country and the cadastral system of Transylvania. This law (Law-Decree no 115/1938) could only be enforced in Transylvania (where the technical conditions of topographical maps and cadastral books existed) where the Law Decree 389/1943 attempted to extend the civil and commercial laws of Romania over the Carpathian mountains, thus maintaining a part of the local cadastral law; subsequently Law no 241/1947 completely replaced the local laws and ordinances regarding cadastral registers. This ensured to enforcement of a complete, modern and unified regulation of the cadastral books in Transylvania and Bukovina, materialized by Law Decree no 115/1938. Law Decree no 115/1938 is characterized and conceived as a general enforcement law throughout the country, thus achieving the legal unification in a complete and modern manner. Its lawmaker kept the safer publicity system which existed in Transylvania, but considered the progress of other laws and the experience of the Alsace and Lorena after they were annexed by Germany in 1871, as well as the demonstrated fact that French law was compatible to the cadastral register principles. By its logic systematization and by content, the Law Decree no 115/1938 was a useful tool which eased the activity of courts and notaries which functioned in these territories. Some of its provisions are taken over, much like systematization, principles, notions, regulations in Law no 7/1996, as there are important correlations between the two. However, regulations regarding the regime of inscriptions and the

10 Real estate publicity 83 constitutive effect of real rights, which truly shows the superiority of cadastral books were not taken over, thus Law no 7/1996 is a regress from Law - Decree no 115/1938, even if it is considered to be a useless retaliation of the followers of the consensus principle and the contractual freedom over the partisans of the rigorous principle of absolute publicity in the matter of transmission and creation of immobile real rights. In applying the new regulations of Law no 7/1996 the following aspects are considered: a) Law-Decree no 115/1938 is considerably restricted in enforcement as all transmission and constitution of real rights must be made in the new cadastral books; b) the registration mode is different in the new cadastral books, but not the cadastral books regime which applies, as regulated by Law no 7/1996; c) Law no 7/1996 is enforced once the cadastral works are terminated, and the regime of Decree-Law no 115/1938 is still to be applied, it will subsequently be abolished once the cadastral works are terminated and the new books are created. In this succession, two categories of registrations are made: those of definitive character (where general cadastre is applied) and non definitive ones (in territories where there are no cadastral works or they are not finalized). The structure and object of the cadastral book is represented by the content and object of the book. They are drafted and numbered by territories. Immobile goods of the same territory form the cadastral register of that county. The Content of each cadastral book is its title and three parts numbered in Roman digits. The title of the book contains: the number of the book, the name of the county where the good is located. The first part (sheet A, also called the Fortune Sheet) describes the immobile good (the plot of land) by showing the order number and topographic number of each plot of land, the type of land (for agriculture or for use), the place where it is located, its extent and a separate column for observations. The second part (sheet B, also called the Property Sheet) contains the names of successive owners in chronological order and has three columns: number, documents regarding property and observations. When the situation requires, certain acts of acquisition of property, personal rights or other legal facts are listed in this section. The third part (sheet C, also called the Task Sheet) contains the real rights which govern the immobile good: servitude, superficies, use, mortgage, immobile privileges, rental for more than 3 years, bankruptcy, personal rights or other legal relations (sequestration, foreclosure). The content of the cadastral book is to be interpreted by corroborating it with the plan, he documents and the entry register.

11 84 NICUŞOR CRĂCIUN BIBLIOGRAPHY: [1] Article 885 of the Civil Code. [2 According to R. Matefi, Civil law. The general part. Syntheses and applications, p. 63, the consent is that fundamental and general condition at the conclusion of a civil legal act law designating the party's decision to conclude a specific legal act. [3] For other considerations regarding the legal act constitutive of rights see R. Matefi, The theory of the civil legal act, Hamangiu Publishing House, Bucharest, 2017, p. 22. [4] Article 2498 of the Civil Code. [5] Article 2 letter d) of Law no 7/1996. [6] Concerning the legislative unification carried out in the context of the Great Unification, see C. I. Murzea, R. Matefi, Evolution of the Romanian State and Law, Hamangiu Publishing House, Bucharest, 2015, p Nicolae, Marian (2011). Immobile publicity treaty. Universul Juridic Publishing House, Bucharest Nicolae, Marian (2006). Immobile publicity treaty. Universul Juridic Publishing House, Bucharest. Sztranyiczki, Szilard (2013). Immobile publicity. C.H. Beck Publishing House, Bucharest. Chiş, Ioan-Daniel (2012). Cadastral books (vol.i-ii). Universul Juridic Publishing House, Bucharest Civil Code. Decree - Law no 115/1938 for the unification of provisions regarding cadastral books