Property granted in compensation by court order. Allocation of the land by the holding unit to another person. Impossibility of enforcement. The value of the alienated property. Establishing the amount of compensation in relation to the time of restitutio
JURISPRUDENȚĂ COMENTATĂ ȘI ADNOTATĂ
Abstract
The right of ownership, once recognised in favour of a person, gives him the possibility to resort to legal means of protection in order to obtain the restitution of the property from the possessor or from another person who holds it without right, including the right to compensation if necessary (Article 563 of the Civil Code). To the extent that the property is no longer in the possession of the person who was obliged to return it – because it has perished or has been disposed of – the right of ownership is transformed into a right of dispossession, as is clear from the provisions of Art. 566 para. (1) of the Civil Code, since no one can be deprived of property without being entitled to equivalent compensation.
Thus, the fact that, although the defendant, in its capacity as the holding unit under Law No 10/2001, recognised the plaintiff's right to the remedial measure of the assignment of the property as compensation, at the time when the measure was attempted to be enforced, it was found that it was impossible to take possession of the property because the land was no longer in its ownership, as a result of the disposal of the same property in favour of other persons, can only mean that the property was removed from the ownership of the holding unit, which from a legal point of view is comparable to the disposal referred to in Article 566(1) of the Civil Code, with the consequence that the person who has disregarded the right of ownership of another person, and has therefore made it impossible to return the property, is obliged to pay the corresponding compensation.
As regards the determination of the amount of compensation, Art. 566 para. (1) of the Civil Code, which gives expression to the effects of the admission of the action for claim – by restitution in kind of the property, i.e. the obligation to pay compensation in the event of its destruction or disposal – takes into account the time of restitution of the property (the main effect of the admission of such an action) since, if restitution in kind is not possible, the value equivalence must be ensured by calculating the disallowance in relation to the same date. The fact that it is not possible to restore the recognized holder's assets by returning the immovable property is grounds for determining the compensation capable of ensuring, at the same time, the replacement value of the property.
Therefore, the time to be taken into account in determining the amount of compensation due for the impossibility of restitution in kind of the property is the time when the judgment that settled the appeal against the provision issued under the special reparation law became final (and therefore the measure of restitution by compensation could be enforced), at which time the value of the awarded property was established according to the international valuation standards provided for in Law No 10/2001 and Title VII of Law No 247/2005.
