Certain theoretical and practical issues, regarding the admittance into guarantee of the estates gained on basis of Law no. 112/1995 for the regulation of the legal situations of certain estates with the destination of dwellings, transferred into the property of the State

• Author: Cornelia Beatrice Gabriela Ene-Dinu
• Pages: 163-170

Cornelia Beatrice Gabriela Ene-Dinu. Lecturer, Ph.D. candidate, Law Faculty, “Nicolae Titulescu” University, Bucharest (e-mail: liadinu78@yahoo.fr).

Page 163

In accordance with art. 9 para (1) from the Law: ..tenants, who are holders of contracts for the apartments that are not returned in kind to the former owners or their heirs may choose after the expiry of the term stipulated in art. 14 to buy such apartments against paying the prices as a lump sum or in installments", and in accordance with art. 9 para (8): ,,apartments gained in the terms of para 1 may not be alienated for 10 years as of the date of purchase". By the amendments brought by art. 9 para (1)-(4) from the Law, by art. 43 para (1) from Law no. 10/2001 on the legal regime of certain estates taken over abusively within the period 6 March 1945 - 22 December 1989, republished: ,,tenants, who were sold the apartments they lived in on basis of the provisions from art. 9 para 1-4 from Law no. 112/1995, by observing such laws, shall be entitled to alienate them under any form before the anniversary of the 10-year term as of the date of purchase, only to the entitled person, former owner of such dwelling".

From the analysis of the legal text it results that the interdiction to alienate (re-alienate) the apartments gained by the tenants for 10 years as of purchase (See art. 37 from the Methodoligical Norms for the application of Law no. 112/1995 adopted by Government Decision no. 20/1995 republished in the Official Gazette of Romania, Part I, no. 27 from 18 february 1997), is a case of temporary and absolute inalienability that regards all apartments purchased in the terms of art. 9 para (1) from the Law. The formation of a real estate market depends inter alia also upon thePage 164 manner in which the legal provisions on the circulation of estates are applied. In regard to the dwelling real estate market, although it is more dynamic than the land market, the deficit of dwelling space is felt unfavorably, as the offer is more limited than the demand. Under such terms, the interpretation of certain notions whereby certain interdictions in regard to the circulation of estates are implemented generates dysfunctions of the real estate market, contrary to the scope aimed at by the lawmaker; but the right cannot remain alien to the economic realities it regulates.

Under such conditions, we estimate that for our study subject it is important to distinguish whether the interdiction (prohibition) is:

1. either only a special sales incapacity or on purchase in considering the person (in personam);

2. or a inalienability (only on sales) established by law according to the nature or destination of the goods, stipulated propter rem that have as a main consequence the removal from the civil circuit.

   The opinions expressed in the legal literature, related to the nature of such interdictions are divergent, as the notary and juridical practice reveal contradictory solutions, a context in which the critical approach of such issue seems necessary to us. In an opinion it was claimed that the interdiction to alienate the estates gained in terms of art. 9 para (8) from the Law represent a intuitu personae unavailability, preventing the persons that gained the properties to speculate the received estates. In another opinion it is claimed that the interdiction to alienate such estates is not a simple special alienation incapacity established between persons, but a inalienability stipulated propter rem, considered for the good (intuitu rei) and not for the person holding the right. This opinion is shared also by other authors, the alienation interdiction characterized as a propter rem obligation, being also extended in regard to the estates gained in terms of art. 9 para (1) from the Law. In another opinion that is quite ambiguous and imprecise, it is claimed that the prohibitive provision stipulated in art. 9 last paragraph from the Law ,,should not be rigidly interpreted when a clause occurs that is beyond the will of the gainer, such as his settlement in another locality", a situation that in the opinion of the author would justify the alienation of the estate also during the 10-year period as of purchase. The opinions expressed by the practitioners in the notary activity, also in natural agreement with their practical activity, oscillate between the in rem nature of the inalienability of such goods and the intuitu personae nature of the alienation incapacity. Thus, in another opinion, the alienation interdictions stipulated in art. 9 final paragraph from the Law and art. 32 from Law no. 18/1991 of the Land Fund, with subsequent amendments and supplements, are propter rem inalienable, but the conclusion in regard thereto of sales precontracts, synalagmatic sales promises is legal, provided the parties do not establish the term to conclude the sales contract earlier than 10 years and such deed is not an alienation of the said estates. The inalienability of goods shall be substantiated on the provisions of art. 963 Civil Code, according to which: ,,only the goods that are in trade may be the object of a contract".

   Stating their opinions for the purpose of the intuitu personae nature of the interdiction to alienate the estates gained in terms of art. 9 final paragraph from the Law, certain authors show that only deeds transferring property are interdicted, not the legal deeds on the setting up and transfer of dismemberments of the property right, as such may also come in the form of deeds under private signature, whereas other authors are of the opinion that the interdiction to alienate estates also implies the interdiction to set up and transfer the dismemberments of the property right, the interdiction to mortgage such, as well as the conclusion of bilateral sales promises (pre-contracts), motivating that by their conclusion the provisions of the Law would be eluded (See O. Radulescu, Interdictia de instrainare a apartamentelor cumparate de chiriasi in baza Legii nr. 112/1995, in magazine Dreptul no. 10/1999, p.35).

   Page 165

   In the legal practice it was deemed that sales pre-contracts are legal and their registration in the land ledger was ordered, as well as the sales contracts concluded by the heirs of the owners of the estates gained in terms of the Law.

   Explicitly or implicitly, all quoted authors agree however that the aim of the lawmaker by alienating the said interdictions is that of limiting...