Real estate recovery. Effects of the termination of the maintenance contract. Creation of the superficies right. The application in time of the provisions of the New Civil Code

DREPT CIVIL ȘI DREPT PROCESUAL CIVIL

Abstract

Further to the termination of the maintenance contract, it is dissolved retroactively meaning that said contract is deemed to have never been concluded. The contract will cease to exist and its clauses will be deprived of any effects from dissolution. Consequently, the maintenance operator, who had acquired the right of ownership over the land through the canceled maintenance contract, is deemed to have never been the owner of the land on which it built the new constructions, but it is a good-faith builder but on the land owned by another person. The land owner becomes also the owner of the new constructions pursuant to Art. 494 of the Civil Code 1864, because the new constructions were erected by good faith maintenance operators. At the same time, the law set forth the compensation received by the good-faith contractor who does not keep possession of the constructions erected and the land owner has the obligation to pay either the price of materials and the 
work to erect the constructions or the countervalue of the rise of the fund value. The superficies right was not regulated by the previous Civil Code and was admitted in the caselaw as an objection to the rule set by Art. 492 of the Civil Code This is a dismemberment of the ownership right consisting in the ownership right of a person over the constructions, 
plantations or other works located on a plot of land owned by another person, over which the superficies titleholder has a right of use. The superficies right could be acquired by way of the parties’ convention, legacy, usucapio or by law. A court decision may not serve for creating a superficies right but only to state based on evidence if it was created before through the modalities described. The right of superficies is regulated by the current Civil Code by Art. 693-702, but pursuant to Art. 68 of Law 71/2011 only the superficies rights created after its coming into effect are governed by the provisions of the Civil Code of 2009.