Proof of title under Law 10/2001. Application of the presumption of wrongful taking
DREPT CIVIL ŞI DREPT PROCESUAL CIVIL
Abstract
Taking into account the multitude of situations in which those harmed by the acts of the totalitarian regime may find themselves in the situation of no longer being able to produce evidence of ownership at the time of the entry into force of the reparation law, the legislator has allowed the operation of simple presumptions in this matter as well, enshrined in the provisions of Article 24 of Law No 10/2001 on the legal regime of wrongfully taken property.
The hypothesis thus regulated for each individual case is not likely to be applied in the present case, since there is no act of wrongful taking to which the courts can give effect in establishing the right of the dispossessed party. Moreover, as stated above, there is no mention in the tax registers or in the land register that, after 6 March 1945, lists N. as the owner of the property.
The methodological norms for the uniform application of Law no. 10/2001 on the legal status of wrongfully acquired immovable property do not interfere with or supplement the law, since the relative presumption of wrongful acquisition cannot be drawn solely from the existence of a title prior to 6 March 1945; it operates, at the option of the law, only for a property acquired in the reference period or before that period, but for which the holder of the property right is recorded in the registers of the time as the owner, when the property is in the State's patrimony without any proof of lawful acquisition, in circumstances which can be objectively classified as wrongful taking (expropriation ordered by normative acts, repressive acts against the person in view of his or her status, with a direct effect on his or her assets, factual taking in circumstances certified by minutes, documentation by the authorities or third parties, replies to petitions, etc.). It cannot be accepted that any title deed concluded before the period covered by the special law confers a simple presumption of acquisition of the property in question by the Romanian State between 6 March 1945 and 22 December 1989.
The existence of the civil status documents and court decisions ordered in the common law of succession, correlated with the 1925 title, do not give the correct picture of an abusive takeover during the reference period of Law no. 10/2001 on the legal regime of certain properties taken over abusively. The plaintiffs were obliged to prove the wrongful acquisition in the name of their author, the mention of the property in his estate in the land registers after 1936 and not merely to claim the application of a presumption which has no legal support in the text of Article 24 of Law No 10/2001 on the legal regime of wrongfully acquired properties.
