16
Aug2018

Right of Occupation. Deletion of a Legal Burden after 61 Years

In our civil practice we encounter difficult issues regarding the land register system. We recently managed to successfully delete a legal burden (right of occupation) listed in the Arad land register in 1957.

The practical difficulty was generated by the fact that the proper identification of the death date of the legal burden’s beneficiary, born in 1898 and emigrated from Romania to Austria in 1959, was unsuccessful. Verification carried out through the embassy, at the General Directorate for Personal Records and Database and at local public services of personal records, as well as in the death registers of different religious cults have gone for naught. According to its constant practice, BCPI Arad rejected all the deregistration applications, arguing that the lack of evidence concerning the holder of the burden’s death makes the deregistration impossible (which practically makes the sale of the burdened good impossible).

In the judicial proceedings concerning the review of the land register decisions issued by BCPI Arad we managed to convince the court of the fact that, according to article 557 in conjunction with article 565 of the former Civil Code, the right of occupation – similar to the right of usufruct – expires if not exercised for 30 years. In our case it was certain that the holder of the right of occupation emigrated from Romania in 1959 and hadn’t exercised her right ever since (Judecătoria Arad, civil judgment no. 2080/7.05.2018). It is to be noted that, in the absence of the death certificate, the court subpoened the beneficial owner by publicity and appointed her a legal guardian.

This case reveals, as far as we are concerned, the incapacity of land register bureaus to solve unusual practical situations by simply following the legal provisions (in our case, the ones of the former Civil Code). By all means, it was unreasonable to argue that a 119 – 120 year old person was still exercising its right of occupation, even though the last known information about that person dated back to 1959; it was also unreasonable to pretend to a third party to prove beyond doubt that the person is deceased. In this respect, we believe that a reform on the rules of the game or a better training of the land register personnel are achievable solutions.

The legal concept of this case belongs to the named partner and coordinator of our company, Mr. Cosmin Flavius Costaș, PhD.

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