April 23, 2010 / Mihai Taus
The operation and organization of land books is based on certain fundamental rules called principles resulting in an express or implied manner from the content of the Law. 7 from 1996, as amended and supplemented.
These principles are as following:
The principle of opposability
According to law nr 7 from 1996, submission in the land books of legal acts of incorporation, acquisition, reconnaissance, extinguishment, modification and transmission of property rights has the effect of opposability upon potential real estate rights’ holders having the same object, to the same author , who have not submitted their rights in the land book, or have done it later – art. 27 of Law 7 / 1996: «The entries in the land book register will take effect in opposability against third parties from the moment of registration of the applications, the order in which the applications were registered will determine the rank order of the entries.» As a result, between parties the legal interests in land transactions shall take effect from the date of their birth, in the form required by law, but they may be opposed to third parties only from the moment of their registration in the land book.
The law establishes certain exceptions to the principle of opposability which are under strict application and interpretation. Such as the cases when the property rights are acquired through: inheritance, access, forced sale, adverse possession, by the effect of law, expropriation or court decision (Article 26 of Law 7 / 1996). «The property rights and other real rights are opposable to third parties without registration in the land registers when they are acquired by inheritance, access, forced sale and adverse possession. These rights will be registered in the land registers if the holder of those rights shall proclaim them.
(2) under the same conditions are opposable against third parties the real rights acquired by the state or any other person by the effect of the law, by expropriation or by court decisions.»In these cases, real rights are opposable against third parties from the moment of their acquisition without any registration being needed. Subsequent purchasers of these rights do not benefit from this exception since the first holders of the right are required to submit their rights in the land register in order to be able to exercise them.
Full disclosure principle/principle of integral publicity
In essence, the principle of full disclosure represents the rule under which in the land book must be registered all real estate rights, material operations, and in certain cases provided by law, the right-claims, facts or other legal relations regarding the properties included in the land registers.
According to this principle are subject to registration in the land book all legal processes by which a real estate/property right is transmitted, comes into existence or is extinguished, with the exceptions provided by art. 26 of Law no. 7 / 1996.
It is also necessary to highlight any changes on the property sheet of the land books regarding the material situation of the property such as merging or splitting of the immovables.
Full disclosure of the land books is assured even on the cases of acquisition of real rights which are not submitted/registered in the land books, (inheritance, accession, forced sale, adverse possession, by effect of law, expropriation or court order) because the holder can exercise these rights only after submission in the land book has been made.
As a result, the land registry represents a true record mirroring the “marital status” of the real estates, including their full and real legal situation.
The wholeness of the real estate publicity is closely related to the effect of opposability of the entries/registrations against third parties, as regulated by art. 26 of Law 7 / 1996, since all legal processes regarding the transmission, the birth, modification or extinguishment of real estate rights and also court actions regarding the property become opposable against third parties only by their registration in the land registers.
There are cases when land book reflects the real legal situation of the immovable, but not the complete one. In most of the cases, the legal restrictions are not registered in the land book by the consideration that the restriction is known as well as the law. Beside that , there are cases when the restriction come from a different authority, the urbanism department, for instance. We can conclude that there are 2 main kinds of hidden charges:
- the hidden charges who comes from the law
- the hidden charges who comes from regulations issued by public authorities.
The Cadastre and Land Registration Offices in Romania hasn’t a homogenous approach regarding the registrations of the charges regulated by the law, but in most of the cases these kind of charges are not registered expressly in the land book, but as a detail of the title. For instance, for the immovable achieved by the law nr 112/1995 who enforce a selling restriction for 10 years, the land book record will not mention that restriction, but will mention that the immovable was achieved “by law 112/1995”.
Since the second type is too various, in my opinion is not recommended to include all those charges in the land book. We have to keep in mind that most of the registrations in the land book are based on documents issued by those authorities who regulate the restrictions, meaning by that that the restriction might be known before the registration. The main hidden charges included in this second type are: intravilan – meaning construction area, but not in all cases, extravilan, agriculture land, etc.
There is an other reason to be careful with this issue. Most of these kind of hidden charges are temporary or suffer frequent modification. In this case, will be hard for the land registry to keep up with the changes.
The conclusion is that the elimination of the hidden charges is a very important issue to be solved, but it is necessary to make an complete list and to decide which charges are the most relevant or the most inaccessible, in order to be registered.
I have to mention that Romania found a solution for some hidden charges by regulating the urbanism certificate as it is in the law nr. 350/2001. This type of certificate is not mandatory, but if requested it provide a complete situation regarding the urbanism restrictions.
The principle of legality
The principle of legality is a means of ensuring the precision and accuracy of entries in the land books.
Formal legality expresses the fact that the registrar will register in the land books only those legal acts and facts provided or permitted by law, relying on the application and the attached documents.
Therefore, the application must contain all information required by law and to it must be attached all the documents that represents the written proof of legal acts and/or facts upon which the registration is requested. Once entered, the application can not be changed, not even by exercising complaint against the conclusion emitted by the registrar regarding the application. However we must recognize the fact that there are certain cases when a judge which rules on a complaint against a land book conclusion emitted by a registrar, ignores the legal regulation.
The material legality lies in the fact that the registrar is obligated to investigate if the document under which the registration is requested meets the fond and form conditions as provided by law for such registration, and if in the contents of the book there are other registrations which do not allow the present registration to be made in the land book (Art. 20 and 48 law 7 / 1996): «The property right and other real rights on a property shall be registered in the land book upon the documents that states how these rights came into being or validly transmitted.». «in the cases where the registrar accepts the request made in the application, he shall make the registration in the land book and shall emit a registration decision which states that the registration is being requested meets the following conditions:
- it is done in compliance with the forms prescribed by law;
- shows the name of the parties;
- individualizes the property with an unique identifier;
- is accompanied by a certified translation if the document is not drawn up/concluded in romanian language;
- the application has attached, where needed, a copy of the land book excerpt for authentication or certificate of tasks based on which the act was concluded. «
The principle of ex oficio
Under this principle, the registrar has the right and legal obligation to check on its own/automatically the application for registration, the validity of the title under which the registration is being required and the content of the land book.
Once the application was submitted and the request was registered, the application can not be completed with other documents or other data.
The registrar may reject the application emitting a reasoned decision when the application is not complete or when the documents on which the application is based are not valid.
Also, the registrar shall proceed to reject the application in cases where the application can not be admitted, because there is a discrepancy between the requirements being made by the application and the existing content of the land book. The legal basis is found in Art. 20 and 48 of Law No. 7 / 1996, as mentioned above.
The principle of neutrality
The principle of neutrality lies in the fact is that the entries in the land book are not made automatically but only at the express request of those concerned, and only regarding the content of the application.
As an exception to this rule we can bring forward the situation when the registration of the application is rejected, registration of the appeal against conclusions emitted by the land registry offices, correcting material errors committed during the operation of registrations or deletions/cancellations of entries in the land books, registration of notes and their deletion/cancellation, all of these registered in the land book automatically and even despite the opposition of the interested party.
This principle, also known under the name of the principle of individualization, assures the accuracy and precision of the cadastral documents and the land books. The rule is that the application register to acts and legal facts in the land book be admitted/granted only if the properties registered in within are precisely defined (by the cadastral number, location, neighborhood area, surface, category of use and sketch plan).
Under this principle the land book entries must specify the exact property or portion of property that is referred to, those against or in favor the entry was made and the right that is registered must be clear and where it is the case must be specified if the property has not debts, mortgages or such.
To respect this principle, by the interpretation of per a contrario of art. 48 of Law 7 / 1996, results that the application of an entry will be rejected if the documents on which it is based upon does not meet the legal validity of the act, has no power of stand out as proof, does not indicate the names of the parties, does not individualize the property by parcel number, it is not accompanied by a certified translation (if not written in Romanian). Of course, regarding the latter point, things are more complicated and beholds upon the procedure of Apostille, supralegalization or European Enforcement.
The principle of priority or the principle of the rank
The principle of priority is the rule that states the fact that the effects of an entry made in the land books occurs from the date of registration the application.
The order of the registration will determine the rank of the entry in the land book.
The principle of priority represents the appliance of the real estate publicity matter of the Roman law principle » qui prior tempore potior jure”. The application for registration shall be filled and submitted at the land registry office, where it will be first recorded in a special register of entries that contains among other things the date and time of submission and the reference number under which it is registered.
The date of the entry gives its rank and produces its effect to the other entries.
Concerning the mortgages, there is a specific issue in the sense that only the mortgage rank can be changed in some specific situations, as mentioned in art. 25 of law nr. 7/1996: (1) Registrations in the land book shall become opposable to third parties after the date of registration of applications; the order of the registration of applications shall determine the rank of entries.
(2) If at the territorial bureau there were submitted several applications for the registration of the real rights, they shall be assigned temporarily the same rank, following that the court decide what rank it shall be assigned to each.
(3) If there were submitted several applications at once having as subject the registration of several mortgage rights over the same building, they shall be assigned the same rank.
The mortgage ranks might be changed by an agreement between creditors
Romanian legislation regulate also a procedure which can be interpreted as a “reservation” of the rank, although the real rank is still given by the application’s registration moment. The land book is “frozen” for 5 days from the registration of the application for the land book certificate for authentication. All the applications regarding the same immovable and registered in this freeze time shall be rejected if the authenticated document based on the issued land book certificate will be registered within those 5 days. Otherwise, the eventual applications registered when the immovable’s land book was frozen will be admitted in their rank, unless there is an other reason to be rejected.
This procedure is imported from other land registry systems where it has the role to protect the parties, in the sens that they refers to the legal situation of the immovable as known in the moment when the land book excerpt for authentication was issued. I believe that the role of the land registry is also to protect the third parties and in this example it is not working in that way.
The principle of relativity
The principle of relativity, also called the principle of consensus or agreement of wills, is the rule that states that any entry in the land book can be made only against the person that in the moment of the request was already registered in the land book as the owner of rights or is to be registered as owner of the right on which the registration is about to be made.
The person against the registration is being made is called tabular predecessor and the person in favor the registration is being made is called tabular successor.
The relativity of the registrations is regulated by art 22 of Law 7 / 1996 according to which the registration of a right can be made only against the person who was registered as holder of the right at the moment of submitting the application or against the person that has already burdened his right before being registered in the land book as the owner, if both entries are required at once.
«The registration of a right can be made only when:
- a) the person against whom at the moment of entering his application has already been in registered as holder of the right upon which the entry is to be made;
- b) the person against whom before being registered, has already burdened his right, if both entries are required at once.
The principle of relativity is an effective means of ensuring the completeness of the entries in the land books regarding the rights that are may be relied on third parties even without their registration in the land book as regulated by art. 26. According to art. 22 The registration could only be made against the person whom at the moment of the request is already registered in the land book as the owner. However, if the holder that transmits the right that was opposable to third parties even without their registration does not proceed to request its registration the acquirer of that same right could not request the registration of his right because that would violate the principle of relativity, the tabular owner is not identical with the person against whom the registration it is requested by application.
Therefore, a registration will be made also in the cases of the rights that are opposable even without being registered in the land book, thus respecting the completeness of all entries. Thus, the registrations in the land book will fully reflect the entire range of the holders of a certain real right, including those who have acquired their right without any registration in the land book being made.
The principle of probative value
According to this principle the real right registered in the land book is considered to be exact, and on the other hand no real right can exist and therefore can not be opposed to anyone, if not registered in the land book. If a right was removed/deleted from the land book, it is shall be assumed that the right in question does not exist. Both cases can be proved otherwise. It is an interesting dispute if that principle is rather applicable to the constitutive effect of the registration, but not the opposability effect.
It is easy to observe that this principle is based on two fundamental assumptions as regulated by law: (Art. 30), and these are as following:
- a) a right registered in the land book on behalf of a person is assumed to exist to benefit the same person, except if it has been born or acquired in bad faith.
- b) If a right was removed/deleted from the land book it is assumed that it doesn’t exists.
The Principle of probative value of the land book is regulated by art 31 of Law 7 / 1996, which states that the content of the land book is assumed exact to benefit the person who has acquired the right and also paid for it through a legal document, only if at the moment of its acquirement another registration has not already been made that questions the content of the land book or the person did not know about this foulness otherwise. «the contents of the land book, with some legal exceptions is assumed to benefit only the person who acquired his right registered in the land book in good faith and upon a legal document.
(2) the purchaser is considered to be of good faith if, at the time of application for registration of the rights for its own use was not noted any action which questions the land book’s contents or whether the transmitter’s title and the content of the land book does not show any discrepancy between this and the actual legal situation. »
This principle has the purpose to protect the third party which acquirers in good faith onerously which was based on the content of the land book, its acquisition being protected from eviction cases that could derive from the invalidity of earlier acquisitios.
The principle of probative force of the registrations/entries does not apply in cases when in the land books was noted an action which questions its content or the third party knew about the existence of the inaccurate entry in another way.
In the first case, evidence of the third party’s bad faith is proved without any complications, studying the existence of an entry for such action in the contents of the land book. In the second case, the one claiming the bad faith of the third party must prove that he knew about the existence of the inaccurate entry in another way, which is deemed in good faith until proven otherwise, according to the principle of bona fideo presumitur.
The principle of conclusive force contributes to the statics and dynamics of the civil circuit security by the fact that the holder of the right registered in land book can not forfeit his property right unless he agrees to do so, and the third party which acquirers in good faith is protected from eviction cases arising from the acquisition of his earlier titles.