Acceptability of Restitution Claims for Real Estate Abusively Taken-Over by the State during March 6, 1945 - December 22, 1989, Filed after Enforcement of Law No. 10/2001

Septembrie 2008

LAURENŢIU PACHIU - Managing Partner PACHIU & ASSOCIATES

As of the date of enforcement of Law No. 10/2001 regarding the legal system of certain real estate abusively taken-over by the State during the period between March 6, 1945 - December 22, 1989, published in Official Gazette No. 75 of February 14, 2001, (hereinafter the “Special Law”) and until present, the courts of law rendered dissimilar judgments on matters regarding restitution of real estate abusively taken-over by the State during the totalitarian regime, a non-unitary practice which was generated by the application of an incoherent, unstable and uncorrelated law.

 

Real Estates under Law no. 10/2001 regarding Legal Regime of certain real estates abusively taken-over by the State during March 6, 1945 - December 22, 1989.

The term “real estate” has been defined under Article 6 paragraph 1 of Special Law, including the “plot of land, with or without constructions, having any of the destinations on the date of the abusive taking over as well as the movable assets that became immovable by incorporation into these constructions”.

A) The general frame for the enforcement of the Special Law is regulated by Article 1, evidencing the return in kind of the real estates abusively taken-over by the state, by cooperative organizations or by any other legal entities during March 6, 1945 - December 22, 1989, and the non returned real estates taken-over by the state under Law no. 139/1940 on requisitions, or if the return in kind is not possible, reparatory measures shall be established in equivalent, under the conditions hereof.

The provisions of Article 2 of Special Law establish the real estate categories to which the special return procedure may be applied, being deemed as abusively taken-over, as follows:

a. real estates nationalized according to Decree no. 92/1950 on the nationalization of certain real estates, as subsequently amended and supplemented by Law no.119/1948 regarding the nationalization of industrial, banking, insurance, mining and transportation enterprises, as well as those nationalized without a lawful title;

b. real estates taken over pursuant to the seizure of the estate on the basis of a court decision according to which convictions are made for political related crimes, provided by criminal legislation, perpetrated as an expression of opposition to the communist totalitarian system;

c. real estates donated to the state or to other legal entities on the basis of:

• Decree no. 410/1948 on donations of certain graphic art enterprises;
• Decree no. 479/1954 on donations to the state and others, which have not been concluded in authentic form;
• Deeds concluded in the authentic form provided by Article 813 of the Civil Code, but only for the case in which the deed of cancellation or of establishing the nullity of donation was admitted through a final and binding court decision;

 

d. the real estates taken-over by the state due to failure to pay the taxes, further to certain abusive measures imposed by the state, whereby the rights of the owner could not be exercised;

e. the real estates deemed as having been abandoned according to:

• certain administrative provision;
• certain court decision issued by virtue of Decree no. 111/1951 regarding regulation of goods of any kind subject to seizure, seized goods, without successors or without owner, as well as of certain goods that are no longer useful to budgetary institutions, during March 6, 1945 - December 22, 1989;

 

f. the real estates taken over by the state on the basis of certain laws or other legislative acts which on the date of taking over, have not been published in the Official Gazette of Romania, Part I or in the Official Bulletin;

g. the real estates taken over by the state on the basis of Law no. 139/1940 on requisitions which have not been returned or for which the owners did not receive equitable indemnifications;

h. any real estates taken over by the state with a valuable title, as defined at Article 6 paragraph 1 of Law no. 213/1998 regarding public property and legal regime thereof, as subsequently amended and supplemented;

i. any other real estates taken over without a valuable title or in failure to comply with the legal provisions in force on the date of takeover, as well as the real estates taken over on no legal grounds by deeds of alienation issued by the local governmental or state administration bodies.

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