Building wrongfully taken over by the State. An action under common law initiated prior to the entry into force of Law 10/2001 concerning a plot of land and a building erected on that land. Burden of proof of ownership. Rules for comparing title deeds.

JURISPRUDENȚĂ COMENTATĂ ȘI ADNOTATĂ

Abstract

The burden of proving the alleged ownership as well as the fact of possession exercised without right by the defendant is always on the plaintiff, by virtue of the principle of 'actori incubit probatio'. Therefore, the "sine qua non" condition for the successful prosecution of the claim is that the plaintiff proves its right of ownership and only afterwards the legal position of the defendant is verified, i.e. to what extent the title exhibited by the defendant can paralyse or not the plaintiff's action.

In the absence of proof of ownership of the building claimed on the basis of primary title deeds, the presumption of ownership in the field of artificial property access cannot be invoked in the absence of an application for the court to confirm the acquisition of ownership of the building built by the owner of the land with its materials.

Although Article 6 of Law No 213/1998 confers jurisdiction on the courts to determine the validity of the State's title, the action for a declaration of invalidity cannot be held to be inadmissible as a result of the plaintiffs' failure to bring a separate claim against the Romanian State before the courts. This is because such a claim is not a claim in its own right, since the validity of the State's title can be examined, incidentally, in the context of the action for a claim, in which it is necessary to determine the preferable title – which means that it is not only the person in possession of the property that must be considered, but also the rights of the authors of such titles.