03.09.2025

Non-use in the context of Law 10/2001: compensation or resignation?

The application of Law No. 10/2001 on the legal regime of certain properties abusively seized between March 6, 1945, and December 22, 1989, continues to generate numerous problems in practice, for example, with regard to land that was once associated with buildings demolished during the communist regime. Some of these plots of land are currently affected by various easements, for example, by the placement of marker posts or above-ground or underground pipes.

However, since they were not expropriated, the land in question was returned in kind to the former owners, on the basis that the existence of the poles or pipes did not constitute an impediment to restitution. Nevertheless, the owners cannot exercise all their property rights, given these material and legal limitations on property rights.

The question that arises is to what extent the owner can claim compensation for the lack of use of the land in question and how this compensation is calculated—in relation to the current category of land use or to the category of use existing at the time the property was taken over by the state?

In one opinion, it was considered in case law that, since the owner accepted the restitution of the land in question, knowing that the pole or pipe in question was located on the land and, in this way, accepted that he would not be able to exercise all the prerogatives of the right of ownership, he could no longer claim compensation for lack of use.

However, the High Court of Cassation and Justice ruled that the aforementioned court decision should be overturned and the case sent for retrial, and that if no provision in the special legislation stipulating the gratuitous nature of this easement is identified, with regard to the provisions of Art. 625 of the Civil Code, which refer to special laws for the determination of compensation, it should be taken into account that the plaintiffs indicated the lack of use of the land as a criterion for quantifying the compensation. It is also necessary to determine whether it is necessary to assess the case on the basis of the European Convention on Human Rights, given that the application of the Convention and the case law of the European Court is at issue, insofar as national law does not contain its own rules applicable to the resolution of the situation brought before the court—a solution required by Article 13 of the Convention, which obliges member states to ensure an effective remedy before the national courts for complaints of substantial violations of the Convention.

According to the provisions of Article 621 of the new Civil Code, easement is not free of charge, so that if it causes damage to the owner, the latter is entitled to compensation in accordance with the rules of common law. For example, the legislation on legal easements in the field of water and oil expressly regulates the granting of compensation for the loss of use of the property.

With reference to Article 621 of the New Civil Code, the right of way for municipal networks, referred to in the specialist literature as "special legal easements" or "administrative easements," entitles the owners of the servient estate to fair compensation in relation to the loss of use.

In the case of Văleanu and Others v. Romania, dated November 3, 2022, the applicants claimed that their inability to recover possession of their properties or obtain compensation, despite judgments recognizing their right to property, constituted a violation of their right to peaceful enjoyment of their possessions under Article 1 of Protocol 1 to the European Convention. The Court referred to the existence of an obstacle to the effective exercise of the rights protected by Article 1 of the first Protocol to the Convention. The Court considered that it was necessary to determine whether the conduct of the Romanian authorities could be classified as interference, failure to act, or a combination of the two. The lack of possession of the property is considered a case of non-enforcement. The Court further notes that some of the applicants have already received some compensation for the loss of use of their recognised property and/or compensation for the non-pecuniary damage caused by the non-enforcement, while in other cases their claims for compensation have been rejected on the grounds of the debtor's bad faith. The Court further notes that any assessment of good faith in the non-enforcement complained of is irrelevant. The Court notes that the fact that the applicants have not obtained enforcement of the judgments recognizing their right to property and have no certainty as to when this will happen constitutes a violation of the rights guaranteed by Article 1 of the First Protocol. The Court also notes that the State has the right to expropriate property and to reduce the level of compensation, but a total lack of compensation cannot be considered justified. The rejection of the claim for compensation for loss of use on the grounds that the authorities were not guilty of non-performance was considered an excessive and disproportionate burden incompatible with the right to property guaranteed by Article 1 of the First Protocol.

Where the owner is deprived of the possibility of exercising his rights by the State, the latter has a duty to compensate the owner accordingly. Whether a case is examined in relation to the existence of positive obligations on the part of the State or whether it concerns the denunciation of interference by the public authorities, "the necessary balance between the competing interests of the individual and society as a whole must be brought to the fore, with a certain margin of appreciation being granted to the state authorities" (ECHR 22 June 2004). As long as the incriminated conduct, taken as a whole, imposes an unjustified "disproportionate and excessive" burden, then it will be considered that the provisions of Article 1 of Protocol No. 1 to the Convention have been violated.

Administrative easements, even if they are legal, are not free of charge in the absence of an express legal provision to that effect, when they cause damage. The owner loses the real possibility of using his property, and this loss must be compensated.

The question that remains is to what extent the compensation should be related to the current use of the land, which was often determined precisely in consideration of the pole or pipeline as arable land, or related to the use at the time of the takeover of the property by the state, which was urban land. Given that Law No. 10/2001 is a special law for redressing the damage caused by the communist regime, normally the category of use at the time of the state's takeover of the property should be taken into account. However, c y opinions have also been expressed in case law to the contrary, in the sense that the current category of use must be taken into account and that the degree of impairment of the land must be established—whether it is a total or partial impairment of its use.

In conclusion, the application of the provisions of Law No. 10/2001 in cases where the restituted land is affected by administrative easements highlights a real tension between the appearance of reparation and the reality of the exercise of property rights. Although the restitution in kind of these properties has been formally carried out, the effectiveness of the right is often severely limited by material and legal obstacles that cannot be ignored. In the absence of express legal provisions regulating the gratuitousness of such easements, the correct interpretation of Article 621 of the Civil Code, in conjunction with the case law of the ECHR, leads to the conclusion that compensation for owners is not only possible but also necessary.

 

An article signed by Cătălina Dicu (cdicu@stoica-asociatii.ro ) - Senior Partner - and Iulia-Theodora Bușagă (ibusaga@stoica-asociatii.ro ) - Junior Lawyer - STOICA & ASOCIAȚII.

 

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