14.11.2024

Restitution of wrongfully repossessed buildings - a never-ending story

 

Although many years have passed since the adoption of restitution laws on properties wrongfully seized by the communist state, the disputes related to the application of these laws are far from over.

In recent years, a new "approach" has been taken by the administrative authorities, and sometimes even by the issuing authorities themselves, to take legal action against title deeds issued under the land laws or restitution orders issued under Law 10/2001, many years after the issuance of these legal acts and their entry into the civil circuit. Such actions have been brought even 20 years after the issuance of the title deeds or restitution orders, which affects the very security of the civil circuit. In most of these cases, the owners have in the meantime disposed of the property to third parties.

With regard to property titles issued under the land laws, one ground of invalidity frequently invoked by the issuing authorities themselves is that provided for by Art. 1 para. 3 of Law no. 165/2013 on measures to finalize the process of restitution, in kind or by equivalent, of immovable property wrongfully seized during the communist regime in Romania, as amended and supplemented, according to which "in the situation in which the holder has alienated the rights to which he is entitled under the laws on property restitution, the only reparation measure that is granted is compensation in points according to Art. 24 paras. (2), (3) and (4)". The legal provision concerns the situation of known assignments of disputed rights. The actions for annulment allege that the holder was no longer entitled to restitution in kind, but only to compensatory measures, on the grounds that he had alienated the right, and seek a declaration that the title deed issued is null and void and the annulment of any subsequent deeds.

The main issue raised in this type of litigation concerns the applicability of Law no. 165/2013. By Decision no. 42/2016 handed down in connection with the resolution of a question of law, the High Court of Cassation and Justice ruled that "where the titleholder has alienated the rights to which he is entitled under the laws on the restitution of property and the request for reconstitution made under the land restitution laws has not been settled by the issuance of the title deed or compensation for the benefit of the original titleholder, his heirs or the acquiring third party by the date of entry into force of Law no. 165/2013, the assignee, as a person entitled to remedies, has the exclusive right to the remedy provided for by the new law on reparation consisting in compensation by points pursuant to Art. 24 paras. (2) - (4) of Law no. 165/2013, as subsequently amended and supplemented."

An issue that frequently arises in practice is that of the applicability of the provisions of Law No. 165/2013 in the case of title deeds issued after the entry into force of Law No. 165/2013, but on the basis of court decisions that became final before the entry into force of this normative act by which the courts ordered restitution in kind and ordered the competent authorities to issue the title deed.

In the case law of the courts it has been held that in such situations, where there was a final court judgment ordering the land to be put into possession and the issuance of title deeds prior to the entry into force of Law No 165/2013 and the title deed was issued on the basis of this court judgment, this normative act is not applicable. Thus, the courts noted that, in such situations, the right of the person in question was definitively recognized by the court prior to the entry into force of Law no. 165/2013, and what was to follow was only the execution of the judgment by putting the land into possession and issuing the title deed, and the applicability in this case of Art. 3 of Law no. 165/2013 would contravene the principle of the security of legal relations and res judicata, as it would imply the reopening of a right that had already been recognized and granted, a right that had to be voluntarily executed by the State authorities.

The Constitutional Court in its turn held in Decision No. 686/2014 that "the judgment is subject to the substantive and formal conditions laid down by the law under which it was given, without the new law being applicable to it".

In the same sense, by Decision No. 671/2017 the Constitutional Review Court held that "the judgment, having the authority of res judicata, responds to the need for legal certainty, the parties being obliged to submit to the binding effects of the judicial act, without the possibility of further questioning what has already been established in court. On the other hand, an intrinsic effect of the judgment is its enforceability, which must be respected by both citizens and public authorities. To deprive a final and irrevocable judgment of its enforceability is a violation of the legal order of the rule of law and an obstruction of the proper functioning of justice " (para. 16).

It has also been pointed out that "a law subsequent to the final/irrevocable judgment cannot introduce an obstacle to its enforcement, but procedural rules may be laid down concerning its enforcement, but without prejudice to its binding force". (para. 21).

For its part, the European Court of Human Rights has also held that "one of the fundamental elements of the rule of law is the principle of the security of legal relations, which means, inter alia, that a final settlement of any dispute must not be relitigated " (Judgment of October 28, 1999, Brumărescu v. Romania, para 61; Judgment of March 22, 2005, Rosca v. Moldova, para 24).

By Decision 606/2023, the Constitutional Court, however, ruled that when the final judgment has not recognized the property right by concretely identifying the parcel of land to be returned in kind, the reconstitution procedure has not been completed and thus the provisions of Law No 165/2013 apply to the title deed issued after the entry into force of this normative act.

As regards the provisions for restitution in kind issued by mayors pursuant to Law No. 10/2001 on the legal status of real estate taken over abusively between March 6, 1945 and December 22, 1989, the courts are also dealing with numerous lawsuits brought by prefects in the exercise of administrative guardianship to annul these provisions, many of which were issued many years ago.

In the case law of the courts, it has been held that even in the case of provisions issued pursuant to Law no. 10/2001 prior to Law no. 165/2013, this normative act is not applicable. It was also held that the prefect's right to challenge the provisions issued pursuant to Law no. 10 /2001 was not a right created by Law no. 165/2013, but also existed prior to the entry into force of this normative act, by GEO no. 81/2007, paragraph 23, Article 16 of Title VII "Regime of the establishment and payment of compensation for properties taken over in an abusive manner" of Law no. 247/2005 on the reform in the areas of property and justice, as well as some adjacent measures, as amended and supplemented, and that it is not a right unlimited in time, being applicable the provisions of the law of administrative contentious proceedings in force at the time of issuance of the challenged act. Accordingly, the action had to be brought within the time limits provided for by the administrative contentious proceedings legislation, namely Law No 29/1990 or Law No 554/2004, as the case may be. The courts also held that it was irrelevant whether the Prefect had the entire administrative file at his disposal in order to verify the legality and the merits of the contested provision.

Therefore, the courts considered the filing of the actions for annulment of the provisions by the Prefect after the time-limits provided for by the administrative contentious law to be out of time.

Over the years, the laws on the restitution of real estates abusively seized by the communist state have generated the most litigation before the courts. Initially these disputes concerned the acquisition of ownership by the former owner, but even after the issuing of the title deeds, the litigation is still far from settled. In the almost 35 years since the fall of the communist regime, only the type of disputes relating to these properties has changed, paradoxically the number has remained the same.

An article written by Cătălina Dicu – Senior Partner.