REGISTRATION OF SALES
1. Documents for sales. What type of documents does your LR system envisage for sales and carrying out their registration?
Romanian Civil Code establishes that registration in the land book is made based on the authentic notarial deed, the court decision in final and irrevocable form, the certificate of inheritance or under any other document issued by administrative authorities, in cases where the law provides in this way. Most real estate transactions are performed by public notaries. Also, public notaries are competent to deal with succession debate and to issue heir certificates.
2. Method of registration. Please, indicate which of these circumstances or data form part of the content of the registration annotated in the registration books or land books for sake of a sale or conveyance.
The main features of this information are further explained in Formal Publicity Fact Sheet and in Chapter VI, point 1 of this Fact Sheet.
The content of the registration annotated in the land book is standardized and basically includes:
- date and number of the application under which the record is made.
- type of real right (e.g. ownership) and registration(e.g. tabulation).
- date, number, type and issuer of the document justifying the registration.
- owner’s name or its business name (individual or legal person), personal identification code, tax identification number, tax registration code or unique registration code, where appropriate, assigned to them.
- matrimonial regime.
- share of ownership.
- transaction price.
An original or a certified copy of the deed is also collected.
REGISTRATION OF MORTGAGES
1. Please, indicate what main legislation governs mortgages in your system.
In Romanian system, the main regulations related to mortgage are contained in Civil Code and Civil Procedure Code.
The procedure for registration in the land book is regulated in the Law on cadastre and real estate publicity, and in the Implementing Regulations of this law.
2. In your LR system, is the registration of a mortgage constitutive?
The new Romanian Civil Code, which entered into force in October 2011, introduced the constitutive effect of the registrations in the land book. Through the implementing law of the Civil Code, the constitutive effect was postponed until the completion of the general cadastre in the administrative-territorial unit where the mortgaged immovable is situated.
Consequently, right now, the registration of mortgage in the land book has an opposability effect that may be invoked against third parties. In practice, the banks do not accept the establishment of a mortgage on an immovable if it is not registered in the land book.
3. Documents. What type of documents your LR system admits for establishing mortgages and carrying out their registration?
According to the Romanian Civil Code, for conventional mortgage, the mortgage deed is concluded in authentic form by public notary, under the sanction of absolute nullity.
4. Method of registration. Please, indicate which of these circumstances or data form part of the content of the registration annotated in the registration books or land books.
As it was mentioned in Formal Publicity Fact Sheet, upon registering (tabulating) the mortgage in the land book the following are mentioned:
- number and date of application for the entry in the land book.
- name of individual or legal person/entity in whose favor the mortgage is entered.
- legal title justifying the mortgage guarantee (date and number authentication of the deed, name and surname of the public notary).
- amount of the guaranteed debt.
- prohibition of alienation/encumbering, as appropriate.
An original or a certified copy of the deed is also collected.
5. Types of mortgages. If you believe it appropriate, indicate the kinds of mortgages which are relevant in your LR system.
Romanian Civil Code regulates two main types of real estate mortgages: conventional and legal.
Regarding the procedure for registration in the land book, the right mortgage is subject to tabulation. Further modifications to the tabulation are notated, keeping the initial registration.
6. Modifications. What does your legal system envisage about modifying mortgages? Do debtors have any legal possibility of negotiating newly the terms of the contract or any part of them?
Romanian legislation regulates some possibilities for modifying the mortgage: assignment, novation, and subrogation. They are subject to notation in the land book, if the modified mortgage was tabulated. Any subsequent modification of the mortgage involves a new agreement.
REGISTRATION OF JUDICIARY CHARGES
1. What kind of orders or judgments can create, modify or cancel an entry in your LR system ?
In the land book can be notated the disputes regarding real estate rights on an immovable. Of these, the most common are the following:
- judicial decisions transferring the ownership or recognizing the property or other real rights on an immovable.
- judicial decisions ordering rectification of a registration made in the land book.
- judicial decisions in foreclosure proceedings.
- judicial orders of provisional measures to attach restrict disposition acts or freeze the assets of the debtor.
- judicial decisions about insolvency of owners.
2. What’s the kind of registrations or entries caused in registration books or land books by these judiciary orders or decisions?
Judicial decisions and orders are subject to common notation in the land book whose duration depends on the decision of the Court.
Notation of a dispute regarding real rights registered in the land book can be made at the request of the interested party or ex officio, at the court referral.
Notation is based on the copy of the action that bears the stamp and registration number of the court or on the court certificate that identifies the subject of process, the parties and the immovable (through cadastral and land book number).
3. In particular, are creditors-plaintiffs who demand payments of sums or money entitled to rely on the Courts and apply for annotations (caveats) or judiciary mortgages in order to attach debtors’ assets?
For someone who relies on demanding a payment of money through a legal action before Courts, Romanian legislation establishes provisional measures to attach restrict to disposition acts or to freeze the assets of the debtor.