Proiect Dobrescu engleza.doc

NOTE: This is the first draft. The translation may contain errors. We apologize for this, but we want you to have an opportunity of getting an idea, before Mr. Constantinescu's visit.
Mihai A. Vinatoru


BILL proposed by Senator R. Dobrescu, PNTCD
June 3rd 1998


LAW ON THE RESTITUTION OF REAL ESTATES
WITH THE MAIN DESTINATION AS DWELLING PLACES
TO THE NATURAL PERSONS
ABUSIVELLY DISPOSSESSED BY THE COMMUNIST REGIME


CHAPTER I

General Provisions


Article 1. (1) Natural persons' dispossession by the Communist regime of real estates with the main destination as dwelling places, ordered through various normative acts issued between March 6, 1945 and December 22, 1989, as well as dispossessions dating from the same period not made on the basis of a normative act, except expropriations for public utility, are declared to be abusive and illegal.
(2) The ownership of the owners dispossessed as mentioned in paragraph 1 or of their legal or testamentary heirs shall be restored according to the provisions of the hereby law.
(3) After their ownership has been restored, the persons stipulated in paragraph 2 must observe the tenants' lodging rights as provided in the hereby law.

Article 2. (1) Until the Court decisions stipulated by the hereby law become final and irrevocable, the real estates transferred to the State after March 6th 1945 not alienated as an effect of Law no 112/1995, remain the property of the State, which exercises its ownership through the competent units.
(2) The alienation by the State of the real estates mentioned in paragraph 1, no matter the form of alienation and the person in whose favor it is done is forbidden. The alienations infringing/violating (?) the provisions of the present article are subject of annulment.
(3) Any alienation of the real estates coming within the provisions of the hereby law made by the State after December 22nd 1989 entitles the dispossessed persons or their heirs to ask for the annulment of the alienation through the action for the restitution of the real estate (?).

CHAPTER II









Provisions on the ownership

Article 3. (1) The former owners of the real estates stipulated in Article 1 or their legal or testamentary heirs will be able to ask for the restoration of their ownership, under the provisions of the hereby law, on buildings with the main destination as dwelling places and also on pertaining land, which they were dispossessed of between March 6th 1965 and December 22nd 1989, no matter the number and the surface and no
matter if after deprivation they obtained ownership on one or more buildings.
(2) If the building was demolished after the dispossession, the persons mentioned in paragraph 1 might demand the restoration of their ownership on the land the building was on, if this is free of any constructions or if it does not belong to the State. In these two cases, the persons stipulated in paragraph 1 are entitled to compensations.

Article 4. (1) Together with the restoration of the ownership on the building, the ownership on the pertaining land shall be restored to the persons stipulated in Article 3, if they are Romanian citizens.
(2) Solely the ownership on the building shall be restored to the persons stipulated in Article 3, who are not Romanian citizens. The pertaining land shall remain the State's property, but the State will grant these persons a free concession as long as the building exists.
(3) In the case of the demolition of the building located on the land granted as provided in paragraph 2, the concession on the land extends for a period of 3 years, starting from the demolition date. In case the owner of the demolished building starts the construction of another building within the period of 3 years stipulated by the hereby paragraph, the concession on the land extends as provided in paragraph 2. If the owner of the demolished building does not start the construction of another building within the period of 3 years stipulated by the hereby paragraph the State will withdraw the concession on the land and will pay compensations.
(4) If the persons stipulated in Article 3 will loose, no matter how, the Romanian citizenship after the restoration of ownership on the entire real estate, the building remains property of the person whose ownership was restored and the land will become State property. The State will grant the owner of the building free concession on the land as provided in paragraph 2.
(5) The persons whose ownership on a building was restored and who were granted concession on the pertaining land will regain the ownership on this land in case they obtain the Romanian citizenship. The change of the concession into ownership is made free of charge.
(6) If the person whose ownership on the entire real estate was restored alienates the building in any way, by deeds between living persons or for cause of death, to a person who does not have Romanian citizenship, this latest will only be able to obtain the ownership on the building and the State will obtain the ownership on the land free of charge. The State will grant the rightful person a free concession on the land.
(7) If the person who obtains a real estate as provided in paragraph 6 alienates the real estate to a Romanian citizen, the concession on the land changes into ownership free of charge.



(8) If the building was demolished after the dispossession and the person entitled to restoration the ownership is not a Romanian citizen, he or she will have the right, depending on his/her option, to receive the payment of compensations or the concession on the pertaining land, in order to build a building. The concession is granted according to the provisions of paragraph 3 of the hereby article.

Article 5. (1) In the terms of the hereby law, by "building" is meant:
a) constructions consisting of one or more bodies, one or more lodging units, mainly designed for dwelling, including outhouses and annexes such as storehouses, stables, hen coops, hog pens and other, as well as the rooms that, at the moment of dispossession had other destinations than as dwelling places.
b) apartments situated inside buildings with many lodging units with one or more rooms, including outbuildings, no matter if these are situated at the same level or on different levels, and also service rooms, cellars, garrets, laundries and other outbuildings and annexes.
(2) When defining the word "building", changes of the construction or apartment made after March 6th 1945 are not taken into consideration.

Article 6. (1) In the terms of the hereby law, by " dwelling unit" is meant:
a. the construction consisting of one or more bodies mainly designed for living in;
b. the apartment placed in a block of flats, designed when built for being occupied by a single family.
(2) When defining the "dwelling units" according to paragraph 1, their situation before dispossession will be taken into consideration.

Article 7. In the terms of the hereby law, by "pertaining land" is meant the courtyard, garden or any surface that is part of the same real estate according to the title deed in force on the date of dispossession.

CHAPTER III

Provision concerning the procedure of restoration of the ownership

Article 8. (1) Persons entitled to the restoration of the ownership on the basis of the hereby law will address the Court of Justice within the range of which the building is located, suing the local council of the county, town or village where the real estate is located and also the unit administrating the real estate, who will represent the State.
(2) The restitution of a sole building may be demanded by each application.
(3) If the claimed real estate has been alienated, the claimant will also bring an action against the third party that obtained it, and will ask for the alienation to be annulled.
(4) The application stipulated by the hereby article may be drawn up (?)within 3 years following the coming into effect of the present law.
(5) Drawing up the application for restitution within the period of prescription stipulated in paragraph 3 by one of the heirs of the titular of the ownership has value of acceptance of the succession within the term.
(6) The application stipulated by the hereby article is stamp duty free.



Article 9. If the building was demolished after the dispossession, the persons entitled to restoration of the ownership, who are not Romanian citizens on the date of the coming into effect of the present law, will be able to ask for compensations for the land they were dispossessed of, under the provisions of Article 8.

Article 10. (1) If approving the action, the court will order the restoration of the ownership and will oblige the defendants to restitute the real estate as it is under the provisions of the hereby law, and, if necessary, Article 4, paragraph 2 will be applied.
(2) The court will not be able to force any part into paying damages or compensations for the increase or decrease in of the real estate's value during the period of dispossession.

Article 11. (1) The decision of restoration of the ownership and the restitution of the real estate has the value of title deed.
(2) The formalities of advertising (the right ?) to ownership are stamp duty free.

Article 12. (1) As an exception to Article 8, the persons entitled to restoration of the ownership on the basis of the hereby law, may demand compensations equal in value to that of the real estate on the date when the decision was pronounced.
(2) If the entitled person drew up an application for restitution, this could be changed during the trial to an application for compensations.
(3) The value of the compensations will be set through a technical appraisal made during the trial.
(4) In the cases stipulated by the hereby article, the State remains the rightful owner of the real estate.

Article 13. (1) In case the parties agree on the amount of the compensations during the trial, the defendant will deposit the compensations and the claimant will be able to immediately cash it.
(2) The court may not pronounce its decision until the compensations have been deposited.
(3) In the case stipulated in the hereby article, the decision of the court is final and irrevocable.

Article 14. (1) The applications based on the stipulations of article 2 and 3 are solved by the court observing the civil law, at the same time with the restoration of the ownership, using the procedure stipulated in articles 8-13.
(2) In the case stipulated by Article 8, paragraph 3, if approving the action, the court will order the annulment of the alienation, forcing the main defendants restitute to the third party defendant the price cashed before the pronouncement of the decision, at an updated value.
(3) Ex officio, the Court will ask the defendants for information, in order to establish if the real estate was alienated by the State.
(4) If the State alienated the real estate, but this could not be established during the trial, the claimant may sue the third party obtainer of the real estate through a subsequent application.
(5) If the claimant asks for compensations during the trial, the court will oblige the local council to pay these damages and will reject the application for reclamation.

Article 15. (1) The applications stipulated by Articles 8 and 12 may also be drawn up by the persons that received compensations on the basis of Law no 112/1995.
(2) In the case of the application based on Article 8, if approving the action, the court will coerce the claimant to restitute to the defendant the amount cashed as compensations before the pronouncement of the decision, at the updated value.
(3) In case of an application based on Article 12, if approving the action, the court will establish the due damage according to the provisions of the present law and will oblige the defendant to pay the difference of value.

Article 16. (1) The subsequent granting of the concession on the land and also its withdrawal, in the cases stipulated by Article 4, will be made through administrative decisions of the local council within the range of which the real estate is located. The decision will be notified to the titular of the concession.
(2) The decisions stipulated in paragraph 1 can be contested (contencios administrativ ?)

Article 17. (1) In case a person re-obtained the real estate on the basis of the provisions of the hereby law or of Law no. 112/1995, and lived in the building prior to the restitution as a tenant, his or her leasing contract is annulled on the date when the court decision of restitution of the real estate became final and irrevocable.
(2) The rental received between the date when the court decision of restitution of the real estate became final and irrevocable and the date of the annulment of the leasing contract shall be restituted to the titular of the restored ownership. The amount cashed as rental during this period shall be restituted by the unit that cashed it, at an updated value.

CHAPTER IV

Provisions concerning the social protection of the tenants

Article 18. (1) The dwelling right of the tenants who are titular of the legal and valid leasing contracts is guaranteed.
(2) The leasing contracts in force on the date of the re-obtaining of the real estate by the owner remain in force and extend for a new period of five years starting on the date the court decision restoring the ownership became final and irrevocable.
(3) The tenants will not be evicted before the expiry of the five years term stipulated in paragraph 1, except the cases stipulated in Article 19.
(4) If the real estate on which the ownership was restored is alienated by deeds between living persons or for cause of death before the expiry of the five years term stipulated in paragraph 2, the person obtaining it must observe the extenuation of the leasing contract as provided in paragraph 2.
(5) At the expiry of the period stipulated in the hereby article, the leasing contract shall be rightfully extended for one more year if the owner does not notify the tenant of his/her intention not to extend the contract, at least six months before the contract expiry date.
(6) The leasing contracts extended under the provisions of paragraph 5 rightfully extend for one more year each time the owner does not notify the tenant of his/her intention not to extend the contract, at least six months before the contract expiry date.
(7) The provisions of the hereby article do not apply to the leasing contracts in which the renter is the State. These leasing contracts are subjects of the common law.

Article 19. (1) As an exception to the provisions of Article 18, the titular of the restored ownership may also demand the tenant to free up the dwelling place before the expiry of those periods, in the following cases:
a. if he or she provides with another suitable dwelling place, according to the law; if the dwelling provided by the titular of the restored ownership is State property, the unit administrating the dwelling place must approve the change of dwelling places.
b. if the tenant does not really live in the building;
c. if the tenant subleased the dwelling place;
d. if the tenant owns a dwelling place free of tenants with a legal and valid leasing contract concluded before the hereby law came into effect.
(2) If the tenant holds a space larger than the suitable one as provided by the law, the titular of the restored ownership may demand that the dwelling space hold by the tenant be diminished.
(3) In the cases stipulated in paragraph 1, letter a. and paragraph 2, the titular of the restored ownership may address to the court.
(4) The State will encourage the construction of social dwelling places, which will be provided with priority, either on tenants' or owners' demand, to the tenants who live in dwelling places restituted to their owners. In case he or she was provided with such a dwelling place, the tenant has to free up the dwelling place that he lives in even before the expiry of the periods stipulated in Article 18.
(5) In the cases stipulated by the hereby article, the owner may demand through an action the eviction of the tenants who refuse to free up the dwelling place.

Article 20. (1) The tenants holding dwelling places returned to the owners or their heirs will continue to pay the legal rental.
(2) The building tax due by the owner will not exceed three fourths of the legal rental received from the tenants.
(3) The titular of the restored ownership cannot be obliged to make repairs to the real estate before the tenants free it up, under the provisions of the hereby law.

Article 21. The following categories of real estates subject of the hereby law shall become part of the State's private domain:
a. the real estates for which no application for restoration of the ownership has been drawn up by the entitled persons within 3 years following the coming into effect of the present law;
b. the real estates for which the courts rejected the application for restitution;
c. the real estates in case of which the claimant opted for compensations during the trial;
d. plots of land free of constructions in case of which the decision to withdraw the concession became final;
e. plots of land free of constructions whose titulars are not Romanian citizens.
(2) In the cases stipulated in paragraph 1, letter a, the real estates become part of State's private domain at the expiry of the period of three years starting the date of coming into effect of the hereby law.


(3) In the cases stipulated in paragraph 1, letter b, the real estates become part of the State's private domain after the decision of the court became final and irrevocable.
(4) In the cases stipulated in paragraph 1, letter c, the real estates become part of the State's private domain from the moment court decision has been pronounced.
(5) In the cases stipulated in paragraph 1, letter d, the plots of land become part of the State's private domain from the moment the decision of withdrawing the concession becomes final.
(6) In the cases stipulated in paragraph 1, letter e, the plots of land become part of the State's private domain from the moment the compensations have been paid.
(7) The State will be able to dispose of these real estates, including sale or concession.

Article 22. (1) In the cases stipulated in Article 21, paragraph 1, letters a-c, the State must offer the real estates for sale. The sale of a building with more than one apartment shall be made separately for each apartment. An apartment shall only be sold to sole buyer.
(2) For every dwelling unit, the titular of the leasing contract who legally occupies it in its entirety has a preemption right. If more titulars of leasing contracts show the intention to buy the dwelling unit in which they live, none of them has a preemption right. In this case, the State may sell the dwelling unit through au auction, at which all the titulars of the leasing contracts for that unit can be present. In all the cases, the purchaser must observe the leasing contracts of the other tenants.
(3) The State may sell to third parties the following dwelling units:
a) dwelling units held by persons who do not have a valid and legal dwelling title;
b) if none of the tenants who have a valid and legal dwelling title manifest the intention to buy the dwelling unit within three months following the date of the offer.
(4) In the cases stipulated in paragraph 3, the sale will be made by auction.

Article 23. (1) The selling price of the real estates subject of the sale on the preemption right (?)shall be set by the local council within the range of which the real estate is located. The selling price shall not exceed that of constructing such a building, from which a percent corresponding to the wear and tear of the building is deducted.
(2) If the building is sold by auction, this auction will start from the price set by the local council according to the criteria set by paragraph 1.

Article 24. The offer for sale of the real estates that have become part of the State's private domain shall be disposed through a decision of the Local Council of the town in which the building is located.

Article 25. (1) After the decision stipulated in Article 25 has been taken, the Mayor will inform, in writing, all the persons stipulated in Article 22, paragraph 2, that they are entitled to buy the dwellings they are living in. These persons may express their intention to buy the house within a period of 3 months.
(2) After the expiry of the period provided by paragraph 1,deeds of conveyance may me concluded, as follows:
a. if there is only one applicant (?), the deed of conveyance may be concluded immediately;
b. if there are more than one applicant, the Mayor will organize the auction stipulated in Article 22, paragraph 2.

Article 26. If none of the persons mentioned in Article 22 expresses the intention to buy the dwelling place within the period stipulated in Article 25, paragraph 1, the dwelling units shall be sold to third parties by public auction. The auction will be organized observing the regulations of the common law.

Article 27. The price paid by the purchasers of a real estate of any category (?)goes to the State Budget.

CHAPTER V

Final provisions

Article 28. (1) Law no 112/1995 is abrogated.
(2) The restorations of the ownership made on the basis of Law no 112/1995 in favor of the dispossessed owners or of their heirs are still valid.

Article 29. The provisions of the hereby law also apply to the trials in progress (?) in the Courts on the date of the coming into effect of the present law, whatever the stage of these trials.

Article 30. The persons who brought actions prior to the coming into effect of the hereby law which were rejected by the courts, are entitled to file a new application, which will be solved observing the provisions of the present law, (....fara a li se putea opune autoritatea de lucru judecat ?)