Real estate publicity

Author:Nicusor Craciun
Position:Senior Lecturer
Pages:74-84
SUMMARY

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.

 
CONTENT
74 NICUŞOR CRĂCIUN
REAL ESTATE PUBLICITY
Senior Lecturer Nicuşor CRCIUN1
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, e-mail: nicusor.craciun@unitbv.ro
Law Review vol. VII, special issue, December 2017, p. 74-84
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.
1.1. 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
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 person3 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 conse nt 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”.
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 effect4 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. 22.
5 Article 2498 of the Civil Code.
78 NICUŞOR CRĂCIUN
any legal relations which are subject to publicity, in regard to immobile goods6
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 818-819, article 1295, article 1394, articles
6 Article 2 letter d) of Law no 7/1996.
Real estate publicity 79
1801-1802), the Civil Procedure Code (articles 710-720). 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.
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.
Real estate publicity 81
2.1. 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 1st, 19187, 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
2nd, 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.
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
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.
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. 232.
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