New Land Book and Cadastre Regulation – Legal Updates for Romania
On 14.02.2023 the new regulation regarding the reception and registration with the Cadastre and Land Book (New Regulation) was published in the Romanian Official Gazette of Romania, part I no. 125 and 125 BIS of 14.02.2023 and entered into force on the same date, effectively replacing the previous regulation published in 2014 (Previous Regulation).
This newsletter provides an overview of the main relevant changes, other potentially relevant changes, as well as the expected (or intended) impact of such changes. Overall, it appears that the intentions were to (i) align the provisions of the Land Book regulation with those of other regulations (such as Law 7/1996 for cadastre and real estate publicity and Law no. 50/1991 on the authorization of construction works) and (ii) streamline the Land Book operations through digitalization.
While clarifying / aligning certain legal provisions which previously required interpretation from practitioners, the New Regulation also contains new inconsistencies (several of which we have highlighted below), as well as unclear requirements / amendments – therefore, the impact of the New Regulation on the cadastral and Land Book procedures remains to be seen (in any case, we expect there to be initial delays in implementing the New Regulation, given the workflows and procedures were amended quite significantly).
- Legal usage right and right-of way provided by Energy Law 123/2012 are included among the rights which can be mentioned (Romanian: notare) in a property’s Land Book
While we assume the intention was to facilitate / speed up registration, this amendment brings a new inconsistency to existing regulations. Namely both the Civil Code (art. 881) and the New Regulation (art. 7) provide that real estate rights (which include the usage right and the right-of-way) are registered with the Land Book (Romanian: intabulare), and not only mentioned (this is relevant as there are certain legal regime differences between the two).
- Real estate rights granted for only part of a property (including for apartments part of a condominium) can be registered in the Land Book through the ”interrupted stream” (Romanian: flux întrerupt) procedure (art. 26)
Please note that the regulation continues to provide also the ”technical information update stream” (Romanian: flux de actualizare informații tehnice) procedure as applicable to real estate rights which encumber only part of a property (art. 79); thus, it is unclear at this stage whether the New Regulation intended for the ”interrupted stream” procedure to replace the previous procedure completely or whether the beneficiary can opt for one of the procedures; it remains to be seen how the Land Book offices will implement the change in practice and whether the new procedure replaces or supplements the existing one.
- A single application will be submitted, regardless of the number of immovable assets, for (i) the mention / de-registration of the right-of-way, (ii) Land Book excerpts issued with respect to the expropriation procedure, (iii) the required registrations regarding an individual unit in a condominium and its shares of the common-use part of the land and (iv) the cadastral documentation in the cases provided by art. 33 para. (4) e) of the New Regulation.
- The documentation for registration of the real estate rights will include as a novelty: (i) only analytical calculation of the affected area (ii) copy of the plan that was the basis for the allocation of the cadastral number of the property (for land registered in the Land Book without geometry) (ii) the location and delimitation plan (PAD) of the property related only to the affected area of the property. The mentions regarding the area of the property affected by real estate rights will now be listed in the section “Observations” of the digital documentation.
- The necessary documentation for real estate rights registration will no longer include: (i) copy of Land Book excerpt and (ii) the coordinate inventory of station points (Romanian: puncte de stație) and radius points (Romanian: puncte radiate).
- Concept of “superficies Land Book” is eliminated – the Previous Regulation provided that a separate “superficies Land Book” would be opened in case of a superficies right being granted – a Land Book which essentially contained the beneficiary’s superficies right over the land and ownership over the construction (in practice this was already done inconsistently, as most times all rights were included in the land’s existing Land Book). The New Regulation eliminates this concept and, thus, all registrations will be included in the same Land Book (that of the land). This change should simplify the registration and verification processes, as all rights related to one plot of land will be found in the same Land Book.
- The removal of a real estate right encumbering a property can be done only with prior consent of the holders of the rights subject to removal – this amends the Previous Regulation, which provided that the removal would be possible only with the consent of persons having any rights registered over the property. Therefore, the New Regulation aims to clarify that only the consent of registered persons with an interest in relation to the respective right should be obtained.
- In relation to the cadastral operation of changing a property’s limits, the New Regulation has clarified the third condition, namely that the operation is possible only (i) for the purpose of bordering the properties and (ii) if it does not involve a border shift and, implicitly, a transfer of ownership right – the Previous Regulation solely provided that no transfer of ownership right should occur. A new provision is also introduced in case the change in the property’s limits also entails a change in surface (without it being considered a transfer of ownership right), requiring for the authenticated statements of the properties’ owners to be submitted.
- The extension of the surface of the intra-muros (Romanian: intravilan) plot of land, with up to 15% of its initial registered surface, will be carried out only based on the cadastral documentation regarding the surface changes and the owner’s authenticated statement. However, in relation to the plots of land resulted from mergers or de-mergers, their surface may be amended with only up to 2% of the initial registered surface. As per The New Regulation, the neighborhood minutes are no longer required for such purposes.
- The extension of the surface of the plot of land located outside the built-up area with up to 5% of its initial surface will be carried out only based on the cadastral documentation regarding the surface change and the owner’s authenticated statement. As per The New Regulation, the neighborhood minutes are no longer required for such purposes.
- The New Regulation includes a new provision stipulating that, in case of overlap between properties when requesting the update of technical information, if the owner of the real estate aims to benefit from his ownership right over the area not affected by the overlap, the property subject to such request will be de-merged, resulting two plots of land, through the cadastral documentation, but only based on the right-holder’s authentic statement. For the overlapping plot, the following mention will be made "property overlapped with the property bearing cadastral no. [*****], being registered with Land Book No. [*****]".
- The New Regulation has aligned the required documents for updating the land’s category of use from agricultural circuit to “buildings and adjoining yards” (Romanian: curți-construcții) by effect of the building permit being issued with the provisions of Law no. 7/1996 and Law no. 50/1991.
- The New Regulation includes a new section regarding the required documentation for registering the properties under the Law Decree no. 115/1938 in the cadastral plan.
- No urbanism certificate required for land demerger (for purposes other than construction) – the New Regulation mentions that, if the land is demerged for purposes other than construction, no urbanism certificate is required if the owner provides a statement that the demerger is not done for this purpose. Nonetheless, while the requirement is eliminated for the Land Book procedure, the provision of Law 50/1991 which deems the demerger null and void if performed without an urbanism certificate (if at least 3 plots are involved) remains in force.
- De-merger of exterior amenities for newly built condominiums – if the number of plots coincides with those in the building permit or the plans attached to the building permit technical documentation, no urbanism certificate is required for the de-merger. Nonetheless, in case of discrepancies, the urbanism certificates remains to be provided – as also mentioned under the above point, the provision of Law 50/1991 which deems the demerger null and void if performed without an urbanism certificate (if at least 3 plots are involved) remains in force and, therefore, the requirement cannot be considered as fully excluded, regardless of the changes brought through the New Regulation.
- The documents required for the registration of ownership right following company mergers / separations have been aligned with those required under Law no. 7/1996, namely (i) the authenticated shareholders’ resolution is no longer necessary to be provided, while (ii) the company should submit instead the authenticated merger / separation project.
- It is no longer necessary for a record / deed to be registered with the responsible Land Book office proving the existence of a case of ex officio de-registration when the de-registration of a real estate right is done ex officio.
- For the Land Book office to acknowledge the cancellation of an ownership title, cancelled through a final court decision, it is no longer required to solely provide the final court decision, but also the acknowledgment of the County Commission that the ownership title was cancelled in court – considering the existence of an enforceable, final court decision, the provision of an additional acknowledgment by the County Commission (which cannot in any case overrule the court decision but, at most, delay the registration procedure) appears as redundant.
- The New Regulation brings a new procedure regarding reception and provisional registration in the integrated cadastre and Land Book system of the property included in National Forest Fund.
- In respect of the expropriation procedure, depending on the legal status of the property subject to the expropriation procedure, an individual cadastral documentation will be issued for either (i)the first registration - for the properties which are not registered with the Land Book, or (ii) the first registration and/or the update of the technical information for the properties already registered with the Land Book. The same article also provides that, if only a part of the property subject to expropriation overlaps with the expropriation corridor, for the overlapping plot will be issued a cadastral documentation of first registration, while for the other part of the property a cadastral documentation regarding the update of the technical information will be issued.
- The New Regulation provides that (i) the Land Book offices are responsible for the reception of the topographical documentation prepared for the request to remove land (or part thereof) from the agricultural circuit and (ii) for land removed from the agricultural circuit through the effect of the law (by the building permit being issued), the update of its category of use from agricultural to buildable is made based on the documentation provided by Law 7/1996 and Law 50/1991, as well as on a cadastral documentation for the update of technical information.
- The topographic plan required forthe issuance of the documentation regarding the authorization of construction works for public utility, works which are subject to special laws establishing the exercise of rights in rem over private properties, will include a mention regarding the provisions of the law based on which the rights in rem are granted. Previously, the regulation referred only to the rights of usage and easement provided by the Law regarding the electricity and natural gas no. 123/2012. In addition, the exemption from the requirement of submitting the Land Book excerpt and urbanism certificate in this case was eliminated.
- Section A “Land related data” of the PAD of the property will include some new mentions, for example if the property is fenced/unfenced. Moreover, some changes are made in the same section of the PAD, such as the representation of the outline of the property with a continuous line, the removal of the different categories of destination of the plots of land comprised by the property or the exemption of the constructions mentioned at art. 93 para. (2) of the New Regulation from the obligation to include in the PAD the constructions erected on the property. Please note that in the glossary of technical terms of the New Regulation it is stipulated that the PAD is issued exclusively in case of performing sporadic works. New provisions on the digitalization of cadastral operations are included in the New Regulation. For example, the New Regulation describes the procedure to be followed for the on-line registration, and also provides the mandatory conditions for such operations, like the obligation regarding the qualified electronic signature to belong to the person submitting the application for the registration of real estate rights in the Land Book.
- The New Regulations define the concept of interested person (Romanian: parte interesată) as those who have requested the registration or de-registration, those whose registered right or legal fact has been affected by the registration, as well as those in whose favor obligations arise from the registration made and whose identity can be determined as per the Land Book.
- As a procedural alignment to the provisions of Law no. 7/1996, the obligation to attach the copy of a challenged Land Book resolution to the application for reexamination is no longer provided by the New Regulation.
- There are also changes in the steps to be followed in relation to the integrated cadastre and Land Book stream (Romanian: flux integrat de cadastru și carte funciară). Thus, if the submitted documentation meets all the technical requirements, the Land Book inspector will approve the application and will generate an admission report which will be further sent to the real estate publicity service (Romanian: serviciul de publicitate imobiliară). Also, additions / amendments to the cadastral documentation may be required. In case the additions / amendments are not submitted within the deadline or the cadastral documentation is not correct, a rejection report will be issued.
- The neighborhood minutes regarding the immovable assets located in the former non-cooperative areas for which no ownership titles have been issued is no longer required for the first registration in the integrated cadastre and Land Book system of the arable plot of land which meets one of the conditions provided by art. 73 para. (2) of the New Regulation.
- The property located in two administrative-territorial units (Romanian: UAT) will be registered with the Land Book of the UAT indicated by the documents attesting the ownership title, in accordance with the legal status of the property. The registration will include the mention “property is crossed by the boundary of UAT […] and UAT […]” which shall be eliminated ex officio in case of amending or updating the UAT limits according to Law 7/1996.
- Land Book excerpts for information or authentication regarding the plots of land located outside the buildable area, registered with the old Land Books, which were subject to the restitution laws (Romanian: Legile proprietății) will no longer be issued.
- The New Regulation provides the definition of the neighborhood minutes and also the mandatory submission of such minutes when registering (i) properties located outside the buildable area (non-cooperative areas) for which no ownership titles have been issued, as well as (ii) properties for which the mention of possession is requested, whether located inside or outside the buildable area, save for the exceptions provided by law. Please note that failure or refusal to sign the neighborhood minutes by the owner of the neighboring property leads to the rejection of the application. By way of exception, it is not necessary the signing of the neighborhood minutes if there already exists a neighborhood minute between the neighboring property and the property which is subject to cadastral documentation to be submitted.
- The cadastral documentation for registration purposes of a construction located on a plot of land already registered in the Land Book must contain in addition: (i) attestation certificate issued by the local authority that issued the building permit, confirming that the construction was carried out according to the building permit and that there are reception protocols upon completion of works (Romanian: proces-verbal de receptie la terminarea lucrarilor) and (ii) fiscal attestation certificate, which includes the real area of the construction and of the related land, issued by the local public administration authority in whose competence the construction is located, as well as the cadastral documentation drawn up for this purpose.
- New provision is inserted stipulating that, based on the express request of the interested person, at the same time as the registration of a construction, the Land Book office receives the technical plans (Romanian: relevee) of the construction, in which case the cadastral documentation will contain the following additional documents: (i) the technical plan issued for each level of the construction (ii) the building permit and the related technical documentation, (iii) the technical expertise based on which the documents provided under Law no. 7/1996 were issued, as the case may be.
- The New Regulation provides that the reception of the technical plan related to a construction can also be requested at a later time. In this respect, the request will be recorded on the integrated technical information update stream, based on documents described above.
- When registering the construction in the integrated cadastre and Land Book system it will be mentioned additionally (i) the height regime of the building, (ii) the construction destination and (iii) the surface associated with the construction, if the case may be.
- The New Regulation clarifies that the update of use / destination category for the entire property registered in the integrated cadastre and Land Book system will take place, without cadastral documentation, based on a request submitted by (i) the owner or (ii) the public notary who authenticates a deed subject to real estate publicity formalities. The request will be processed through the integrated stream, and the inspector will update the relevant information in the Land Book system.
- A new provision stipulates that the update of the information regarding the destination of the construction is carried out based on a technical information update documentation, prepared based on the specific administrative deed, such as certificate of attesting the construction, certificate issued by the City Hall, building permit or operating permit issued by the local authority.
- A new section is introduced regulating the rectification of errors occurring when identifying the limits of UATs. This new procedure is defined as the operation by which the wrong limit between two UATs, initially established on an orthophotoplane basis, by a delimitation commission, is replaced with the legal limit existing in the factual reality, determined by measurements, based on the coordinate inventory, without changing the description of the boundary wayline from the signed delimitation minutes. This procedure will take place during the reception process related to sporadic/systematic recording works, whenever necessary.
- The deregistration of prohibitions derived from an immovable mortgage agreement (alienation, encumbrance, rental, de-merger, merger, demolition, restructuring and arrangement) is now possible both ex officio, together with the de-registration of the main mortgage right, as well as separately, at the request of the interested party, together with the mortgagor’s authenticated consent.
- The right of revocation (Romanian: revocare) or unilateral termination (Romanian: denuntare unitalerala) of the contract, mentioned in the Land Book, shall be deregistered from the Land Book ex officio, at the same time as the deregistration of the registration made under the agreement subject to revocation or unilateral termination. Previously, the deregistration was only possible based on a request or based on a court decision. As per the New Regulation, when the deregistration is made based on a court decision, it is newly provided that the court decision must be final, and the certified copy of this decision is no longer needed.
- The right of termination (Romanian: rezolutiune / reziliere) mentioned in the Land Book shall be deregistered from the Land Book ex officio, at the same time as the deregistration of the registration made under the agreement. Previously, the deregistration was only possible based on a request or based on a court decision. As per the New Regulation, the deregistration is no longer possible based on a court decision by which the contract was cancelled (Romanian: desființat).
- The technical report (Romanian: memoriul tehnic) must contain new information when submitting the following documents: (i) the topographic plan required when updating the surface of the plot of land / construction in the tax records / agricultural register for the purpose of mentioning the possession as per art. 41 paragraph (3) and (8) of Law 7/1996, and (i) the fiscal certificate. The new required information provided by the New Regulation regards: (i) the type of work according to the one specified in the application (ii) the number of the property deed / number of the deed which proves the possession, if the case may be (iii) the number of the possessor’s statement provided by art. 41 para. (8) d) of Law 7/1996, as the case may be (iv) the owned surface and the possessed surface – with regard to plots of land (v) the number of the fiscal certificate– with regard to constructions (vi) the measured built area and the built area registered in the fiscal records on the date of the measurements.