Bringing back in discussion the situation of the properties taken over by the state during the 1945-1989`s, and restored according to Law no. 10/2001, we will discuss the compensations established as equivalent to the market value of the property.
The Ministry of Finance came up with the idea that, in some restitution files, the compensation established by National Property Restitution Authority, based on the expert reports carried out by various authorized experts, would not have been the correct ones, being far above the real market value.
Consequently, it burdened the courts with a multitude of cases initiated to recover amounts deemed to have been overpaid, even though the refunds had been completed more than 10 years ago.
In this context, we present you a case that our company managed, that received a final solution at this time.
In this case, the Ministry of Finance took ANRP before the Court, requesting that this authority be ordered to pay back to the state the price difference found between the market value established by ANRP and the real market value of the property established by a second evaluation, plus the related interest.
Next, the ANRP called as guarantee both the person who benefited from the compensation and the authorized appraiser who carried out the expert report on the basis of which the compensation was established.
The mechanism for establishing the compensation, regulated by Law 10/2001 amended by Law 247/2005 and based on which the restitution files were settled is as follows:
– ANRP, as beneficiary, concludes contracts for the provision of real estate evaluation services with ANEVAR authorized experts, as service providers.
– The properties which require evaluation are stated in these contracts.
– Based on the contract, the expert draws up a valuation report for each property, establishing its market value.
– Requests for clarifications or additions or objections can be made against this report.
– Subsequently, the evaluation report is submitted for verification and approval to the authorized Commission in this regard – the Central Commission for the Determination of Compensations.
– Following approval, the CCSD would issue a deed of compensation for the market value of the property thus determined.
In 2013, the Audit Court issued Decision no. 10/10.10.2013, ordering A.N.R.P to verify all evaluation reports with a value of over 500,000 lei drawn up in the compensation files based on Law no. 247/2005.
Thus, in all files with a value higher than 500,000 lei, a secondary evaluation report was drawn up.
In those cases where significant differences were found between the market values established in these two reports, the Ministry of Finance initiated court actions against ANRP asking for compensations.
The only intriguing question is why the Court of Accounts and the Ministry of Finance have referred to this issue 10 years away from the time of internal suspicions about the compensation mechanism?
The Ministry of Finance explains that its approach would not be prescribed, since the initial evaluation report was not communicated to it, and it had no possibility to become aware of it, although the procedure did not require any formal communication to the Ministry.
ANRP, consequently, called in the guarantee the expert who established the market value of the property considered disproportionate in relation to the second evaluation report.
Therefore, the joint liability of both the expert and the person who collected the compensation is in question.
Given the time period of 11 years from issuing and approving the first evaluation report tosubmitting the court action, the compensation request filed by the Ministry of Finance was rejected by the court as being prescribed.
We fully agree with the court’s opinion, which established that the prescription institution affects the right of the Ministry to file an action for compensation, since all the documentation of the compensation file was made available to the ANRP and to the Romanian Property Fund, so that the State (through the Ministry of Finance) could challenge all documents in the file, including the evaluation report, through the institutions and authorities that compose and represent it – including ANRP or the Property Fund.
Therefore, the court concluded that since these public institutions act in the name and on behalf of the State, not only that the State knew, but even should and could know both the damage and the person responsible for it, from the moment of drawing up the first evaluation report and especially from the moment of its approval by the CCSD.
Even if the solution is of a procedural nature, it also gives satisfaction to the valuation experts called to defend themselves in such disputes. If the dispute had been settled on the merits, the principle of legal security should certainly have been valued, which prevents the re-questioning of some conclusions of the expert reports drawn up more than a decade ago, reports in respect of which no raised then no substantive observations.
This article was prepared, for the blog of the civil society of lawyers Costaș, Negru & Asociații, by Ms. Clara Dohotar (Bucharest Bar Association).
Costaș, Negru & Asociații is a civil society of lawyers with offices in Cluj-Napoca, Bucharest and Arad, which offers assistance, legal representation and consultancy in several practice areas through a team composed of 19 lawyers and consultants. Details regarding legal services and team composition can be found on the website https://www.costas-negru.ro. All rights for the materials published on the company’s website and through social networks belong to Costaș, Negru & Asociații, their reproduction being permitted only for informational purposes and with correct and complete citation of the source.
