Harvesting the results of a real estate project – be it office, retail or residential – can stumble now and then on situations where tenants remain behind on paying the rent. So what measures can a landlord implement according to Romanian law and what steps can he take in order to maximize his chances of quickly and effectively getting rid of a defaulting tenant?
As the saying goes, prevention is always better than cure, thus, in order to facilitate the eviction of a defaulting tenant, landlords are advised to conclude lease agreements in notarized authenticated form. Such a notarized lease agreement represents, according to Romanian law, an enforcement order (Rom. titlu executoriu) which enables (a) the swift recovery of unpaid rent and (b) the eviction of the tenant/retaking possession of the leased premises after the lease term has expired or after the lease has been unilaterally terminated, both without having to bring action before a court of law. Alternatively, a privately signed lease agreement registered with the fiscal authorities also enjoys the effects of an enforcement order.
As according to the New Romanian Code of Civil Procedure, the tenant can expressly waive the formality for the landlord to notify the tenant of the eviction in advance via bailiff, a diligent landlord should negotiate such a clause in his lease agreements.
But what if the landlord does not benefit from a lease title in authenticated/notarized form? In such a case, landlords had traditionally to bring action in court, either requesting the restitution of the leased premises based on the tenant’s obligation deriving from the lease agreement to vacate the leased premises or invoking the landlord’s ownership right. However, both these types of law suit many times proved tiresome and tedious.
In accordance with the more modern provisions of the New Romanian Code of Civil Procedure, the landlord/owner of the real estate benefits from a special procedure before the court meant for exactly the situations discussed herein.
The particularities of said procedure are as follows: (a) action may be filed with the court in the area in which the real estate is situated; (b) the tenant is cited at the address of the real estate, thus eliminating the possibility of the tenant to dispute the validity of the court’s ruling on the grounds of irregular citation; (c) hearings are swift; (d) the court’s ruling in first instance is enforceable; (e) the tenant may not file incidental/secondary claims in the eviction procedure and (f) the enforceability of the ruling may be suspended only if the tenant provides the unpaid rent at the disposal of the landlord.
And, in order, not to have the same tenant claiming rights with respect to a new lease of the leased premises, it is further advisable to insert an express waiver by the tenant of the right of first refusal (which is automatically granted by the Civil Code to the tenant) to the benefit of the landlord.
In conclusion, it is highly advisable for the landlord to include special clauses, from the beginning, in the lease agreement and to conclude the said agreement in authentic/notarized form in order to facilitate the eviction of the tenant, should such a necessity arise during the contractual relationship.