Acquiring by law the public property right over the steep coast

DEZBATERI

Abstract

Critical research of a consolidating jurisprudence regarding property claims of steep coast lots offers the opportunity to clarify the ways to acquire this right and to defend it by property claim.

I maintain that, only in the case of goods declared by law to be the exclusive object of public property of the state or of an administrative-territorial unit, the law is the original way to acquire this right, in the sense that it produces effects only with respect to goods which, on the date of its entry into force, are not owned by another person; in other words, such law does not and cannot have the effect of a nationalization. This does not exclude the possibility to acquire the public property right, prior or subsequent to such law, by secondary ways of acquisition, such as those provided by article 863 of the Civil Code.

The state or administrative-territorial unit can file a property claim based upon the law by which it submits to have acquired the public property, bearing the burden to prove its right, and the court is to verify, by any means of evidence, whether the asset belongs to the category of goods declared to be the exclusive object of the plaintiff's public property and if the law produced such an effect, that is, if another person really had no property right at the moment the law entered into force.

Even if the public property right is proven in this way, the existence of exceptional circumstances that justify a title comparison cannot be excluded, when another person produces a property deed, established in good faith after the entry into force of the law that stated the exclusive public property of the state or the administrative-territorial unit over the category of goods to which the object of the claim belongs.

Within this title comparison, but especially in the broader context in which the „exclusivity” of a category of goods belonging to the public domain of the state or the administrative-territorial unit is being discussed, it must be taken into account that the effect of such legislative solutions is the institution of acquisition bans. These, in my opinion, are not special personal incapacities, but limits to the exercise of the property right, which must be justified by a proportionality ratio with the legitimate aim pursued.

Keywords: property right, property claim, exclusive public property, ways of acquisition, steep coast, acquisition bans