Preventive control of legality

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1. Do Land Registrars or Land Registries carry out a legal scrutiny or assessment of the documents or applications submitted or (conversely) are registered without a previous examination?

Ownership and other real rights over immovable property are registered in the land book based on the act through which they have been validly constituted or transmitted.

As a general rule, the Romanian law states that an immovable (meaning land with or without constructions) can be alienated or acquired by legal acts between livings only if these documents are concluded in authentic notarial form. Failure to comply with this requirement is sanctioned by absolute nullity of the legal act. Consequently, the public notary has to verify and be responsible for meeting the legal validity conditions of the transmission act authenticated by him/her.

According to Romanian law on cadastre and real estate publicity, the registrar accepts the application and disposes tabulation or provisional registration, if the document meets the following conditions:

  • is concluded with the forms prescribed by law.
  • correctly identifies the name of the parties and specify the personal number code, the tax identification number, the tax registration code or the unique registration code, where appropriate, allocated to them.
  • individualizes the immovable through a land book number and a cadastral number or topographic number, as appropriate. If cadastral identification of the immovable is not possible, based on data included in the content of the act, a cadastral documentation shall be carried out.
  • is accompanied by a certified translation, if the document is not drafted in Romanian language.
  • is accompanied, where appropriate, by a copy of the land book excerpt for authentication as a basis for drawing up the act.
  • is accompanied by payment proof of fee for land book registration, except the legal exemptions.

The registrar rejects the application for registration if the legal act is absolute null or it does not meet specific conditions established by the regulations in force.

2. What does the object of the LR assessment consist of? Are the documents presented and the content of the registration books or land books (or any other books or lists of your LR organisation) the only elements that land registrars bear in mind for carrying out their assessment and then to accept registration or not? What is the situation in your LR system?

Land book registrars examine the documents once presented and the land books content. Having studied both, they decide if accept the registration or if they refuse it.

If documents do not meet specific conditions stipulated by Romanian law on cadastre and real estate publicity and by other special regulations, the registrar rejects the application for registration.

For instance, as it was mentioned, according to Romanian Fiscal Code, upon the transfer of ownership right, the seller has to pay a property transfer income tax.
In order to register the real rights acquired based on the authentic notarial acts, heir certificates or judgments, the registrar checks the payment proof of this fiscal tax.
If there will be no proof of this payment, the registrar shall reject the registration request until the tax payment.

In exceptional situations, parties may be convened through a communication address, which will indicate the place, date and time of presentation to the registrar, if the obstacles in processing the application can be understood in this way.

Since the Romanian LR system integrates both cadastre and land book, the registrar may also rely on cadastral plan.

3. Otherwise, the correct answer with respect to your LR assessment would be:

Romanian LR system does not accept documents that don’t fulfil all legal requirements.

4.  A specific case: let’s consider an application for registration based on a document or deed with lack of legal prerequisites.  What would your LR response be?

If documents do not meet legal prerequisites or contain legal inaccuracies, there will be reasons of rejection and registration will not be possible as long as the defects are not rectified.

5. In case of rejection or abeyance of a document, does your system provide legal possibilities to request a review to the parties or stakeholders? Do they have legal possibilities of appealing the Land registers’ decision? Please, describe the procedures if applicable.

The registrar shall process the applications for registration by a decision. This decision is communicated to the person who requested registration and to other interested persons, according to the mentions from the land book, within 15 days from taking the decision, but no later than 30 days after registering the application.

Interested persons may submit request to re-examine the decision, within 15 days from notification. This request is solved through another decision by the chief registrar.

A complaint against the decision of registrar chief may be made within 15 days from its notification. The complaint is settled by the judge court in whose jurisdiction the immovable is placed. Settlement of complaint is without citing the LR office.

The judgment may be appealed. The first-instance court decision may be appealed to higher court.

Final and irrevocable court decision is communicated ex officio by the last court to LR in order to carry out the needed registrations in the land book.

6. Must registrars or LR offices do their assessment within deadlines? If applicable, is it mandatory for registrars in charge or is it rather a guideline?

Deadlines for processing the applications are clearly and precisely regulated. Their duration varies depending on the type of registration requested. As it was previously mentioned the maximum resolution cannot be longer than 30 days after registering the application. Failure to comply with the deadlines leads to disciplinary sanctions against the guilty person.