INTERNATIONAL CONFERENCE - Facultatea de Drept

Conference Proceedings - Galaţi, 24 th -25 th of April 2009
Year I, Vol. I - 2009
came into State’s property pursuant to a valid title, with the observance of
the Constitution, international treaties to which Romania is part of and of
the laws in force at the time of their takeover by the State, the final
paragraph of the article indicating that "the trial courts are competent to
establish the validity of the title".
Even if the Law. 10/2001 stated expressly that all the immovable
properties were abusively took over during the period referred to above,
however the trial court has the jurisdiction to determine the invalidity of
the State’s title and as a consequence, to compare the titles invoked by the
parties in this particular case, those of the former and present proprietors
who obtained the immovable by purchase under Law No. 112/1995.
The recovery action formulated by the plaintiffs against purchaserstenants
buyers, after entering into force the Law No. 10/2001, is admissible,
because, the prior procedure stipulated by this normative act, is applicable
only if the recovered immovable property is in the patrimony of the State
or of the legal person holding, situation in which, the legitimate person can
obtain the restitution in kind of the immovable property that is subject to
notification.
On the other hand, the recovery action against tenants who became
proprietors by purchase, in accordance with Law No. 112/1995, is also
admissible in the situation in which the former proprietor or his successors
have formulated a notification in accordance with Law No. 10 / 2001,
because, each procedure is based on different legal grounds, so, it cannot
sustain that they would get twice the same thing.
To this solution contributes also the Protocol No. 1 to the ECHR,
which guarantees the property right, same as Article 21 of the Romanian
Constitution.
Under the conditions proving that State took over the immovable
with invalid title, the recovery action will be admissible, because with the
exception of expropriation, the law regarded as a title, being a method of
acquisition and not of loss of property, considers the situation where the
State disposes its patrimony in favour of third parties, but not of thirdparties
patrimony in its favour, because it cannot dispose of assets
belonging to another, the provision being an exclusively attribute of the
proprietor.
Therefore, in case of transition of the immovable under the State’s
property, in the conditions of Decree No. 92/1950, not being subordinated
to the requirements of an expropriation under Article 481 of Civil Code, it
doesn’t represent a valid acquisition of property, couldn’t constitute a title
of the State, as defined by Article 645 of Civil Code. This nationalization is
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