The new Romanian Civil Code (the “RCC”) came into force on 1 October 2011 and has reformed the legal concept of Acquisitive Prescription is established in the former Civil Code.
RCC principles similar to those of the former Civil Code:
Acquisitive Prescription (“AP”) is one of the means of acquiring property or property-related rights (i.e. right of use, right over the proceeds, right of habitation, servitudes and superficies rights) over an asset by a person holding possession over that asset for a determined period of time. Possession must be free from any "possession vices" established by law (the “Vices”). The Vices are: discontinuity of possession; exercise of possession by violence or clandestinely; and lack of intention of the possessor to behave like a true owner in relation to that asset.
Only assets that are susceptible to possession (i.e. tangible, individualised assets that may be acquired legally) and which have not been declared inalienable by law can be the object of AP. The combining of possessions is permitted. When calculating the amount of time needed for the possession to produce AP, the person invoking it is allowed to include the possession previously held by the person who transmitted the title of the asset to him. RCC principles which contradict the former Civil Code:
AP for real estate assets abandons in great part the distinction between so-called "good-faith / bad-faith prescription". Instead, it is now based on the following types of prescription, depending on the Land Book registration status of the real estate asset:
A) Prescription Outside Land Book Registration ("uzucapiunea extratabulara") This prescription is applicable to movables possessed for a period of 10 years if:
i) the owner registered in the Land Book has died or has ceased its legal existence (the 10 years start at the date of death/cease of legal existence);
ii) a declaration waiving the right has been registered in the Land Book (the 10 years start on the date of the waiver); or
iii) the immovable has not been registered in any Land Book.
In each case, the possessor can acquire property or property-related rights by AP. This can only be done if the Land Book registration of title is admitted according to law; is based on a “legitimate cause” (i.e. a valid title); and is registered before the registration of any title belonging to another person (regardless of whether it is registered during the 10 year term or after).
B) Land Book Registration Prescription ("uzucapiunea tabulara")
The RCC stipulates that the rights of the person registered without a “legitimate cause” in the Land Book as the owner of, or holder of property-related rights in, a real estate asset cannot be challenged when he is registered in good-faith and has been possessing the real estate asset for five years from the date of the Land Book registration. This is true as long as this person's possession is not affected by any Vice. For the prescription to take effect, it is sufficient that the good-faith of the possessor existed at the moment when his Land Book registration request was duly admitted, and at the moment that his possession began.
For the purposes of AP over real estate assets, the term “registered in good-faith” means that on date of Land Book registration: i) no legal action challenging the Land Book content has been filed; ii) there is no cause justifying any correction to Land Book content; and iii) the person filing for registration of its rights does not know that the Land Book content is incorrect.Further, in all cases of AP for involving real estate, the Vices suspend the prescription terms for the periods in which they produce effects.
The AP is also applicable to movable assets. If not acquired in good faith, as a result of a property transfer concluded for consideration with a non-owner, AP applies. If acquired in good-faith, such movable property is presumed by law as transmitted to the acquirer immediately, without any need to apply provisions regarding the AP, but subject to other certain circumstances and conditions. In cases where the AP applies, the prescription term is 10 years from the moment the possession started. The rules mentioned above in respect of the combining of the possessions when calculating possession terms and in respect of Vices are also applicable. For the purposes of AP over movable assets, “good-faith” means that the possessor did not know and should not reasonably have known, considering the circumstances, the lack of title of the person from whom he acquired the movable asset.
In respect of the applicability of the new provisions on the AP, we note that prescriptions for which terms have started and did not fully elapse before 1 of October 2011, are entirely subject to the old Civil Code regulations. This article is for information purposes only, must always be interpreted in conjunction with other applicable provisions of current legislation, especially in light of the law regarding the implementation of the New Civil Code (Law no. 71/2011), and must not be construed as legal advice, nor relied upon in future action without CMS prior consent or further CMS advice.