Eviction. Invoking Article 8 of the ECHR. Estate restituted to the person entitled under Law no. 10/2001. The increase in value brought by the tenant. Applicability of the provisions of Article 48 paragraph 2 of Law no. 10/2001, as amended by Law no. 1

DREPT CIVIL ȘI DREPT PROCESUAL CIVIL

Abstract

Article 8 of the E.C.H.R. provides that the right to housing, to a “residence” is not absolute and that limiting the exercise of this right is admitted given that it is not provided for by law, it pursues a legitimate goal and is proportional to the intended right. 
In this case, we can discuss about a so-called conflict between the right to housing of the defendant and the ownership right of the plaintiff, however, in no case, the defendant’s eviction can be deemed as an infringement of his or her right to housing, since this is a legal mean made available to the owner for the purpose of obtaining the vacation of the building which is his property by an abusive occupant without any title, and thus, to be able to enjoy all attributes of his ownership. 
From this perspective, eviction seems to be a proportional measure, and it is intended to ensure the respect for the right of ownership of the plaintiff who, as a result of certain imperative legal provisions, was forced to accept the requirement of concluding a lease agreement with the defendant.

It cannot be shared the allegation according to which eviction and the establishment of a retention of title are not mutually exclusive and that the establishment of a retention of title on behalf of the defendant over the estate at this time would not in any way be equal to the plaintiff’s deprivation of her right of ownership, given that Article 2496 of the New Civil Code - applicable in this case -, expressly provides that “the retention of title cannot 
be exercised if the possession of the estate results from a tort, is abusive or illegal or if the estate is not susceptible to foreclosure”. Similarly, the retention of title cannot be relied upon by the bad faith owner except the express cases provided for by law. 
The plaintiff considered that when determining the party forced to pay compensation for the increase in value brought by the tenant to those estates, the provisions of Article 48 of Law no. 10/2001 in its initial version, applicable when the plaintiff “was forced to conclude the agreement with the defendant” should be taken into consideration. 
This allegation is unsubstantiated, since the plaintiff’s right to request the defendant’s eviction from the contested building arose upon expiry of the rental period established in the agreement no. (...)/19 March 2008, namely on 20 February 2013 and, accordingly, the  defendant’s right to request compensation for the increase in value, respectively for the improvements made to that building the eviction of which the plaintiff had requested, also arose at that time. However, on 20 February 2013, Article 48 paragraph 2 of Law no. 10/2001, as amended by Law no. 1/30.01.2009, which became effective on 6 February 2009, setting forth as follows: “no matter if the building was taken over with a valid title or without a title, the obligation of compensation provided for under paragraph (1) falls upon the entitled person”, was into force.