THE CONSTRUCTOR’S PRIVILEGE

THE CONSTRUCTOR’S PRIVILEGE

01/06/2011

–The modality to get the privilege registered in the land book of the built immobile –

As many of the concepts present in the Romanian law system, the registration of the constructor’s privilege in the land book proved to have a practical applicability that depends, to an overwhelming extent, on the interpretation or the good will of the workers at the land book offices. Being on the land of an inconsistent and sometimes even contradictory legislation, the diverse opions we ran into, counting in the opinion of some of our attorney colleagues according to which the constructor’s privilege is nothing but a “custom”, araised our interest for the present subject.

The actual regulation of this concept has two compounds: on one hand there is the Civil Code, stating that the privilege will be registered based on the reports drawn by some experts, deliberately named by the court, and on the other hand the legislation regulating the land book system (Law no. 7/1996 of the cadastre and real publicity, together with the Regulations for the systematizing of the cadastre and real publicity offices endorsed by A.N.C.P.I. Order no. 633/2006), which states that the registration of the constructor’s privilege will be made, ex officio, based on the document attesting the privileged debt. Therefore, the legal framework is more than ambiguous, and the confusion is fed by a reference provision in the Law of cadastre that states that, in all cases, the privileges will be registered only “in the conditions determined by the law that established them”, leading us back to the Civil Code and especially conflicting its provisions.

The answer to this matter stays in the chronological anayze of the applicable legislation. The provisions of the Civil Code above mentioned must be interpreted according to the provisions of the Code of Civil Procedure from 1865. The latter included a chapter dedicated to the transcriptions of the property alienation acts and the inscriptions of the real warranties, this chapter being eliminated once the code was republished in 1948, an aspect of total consonance with the instroduction of real publicity system based on land books endorsed by the Decree-Law no. 115/1938.

The Romanian legislator in the period of the procedure code’s republication didn’t perform the corresponding modification within the Civil Code, consequently his provision related to the inscriptions must be appreciated as obsolete.

Practically, the autonom regulation of the land book system detached the registration of the mortgages and privileges, including the constructor’s privilege, out of the judge’s prerogatives and established, in the same time, a new procedure, totally independent from the courts’ intervention.

In conclusion, we consider that the form of Article 1737, par. (4) in the Civil Code is the consequence of a legislation inadequacy and that the special provisions regarding land books offer the sufficient legal framework in order to settle the conditions for registering the constructor’s privilege. It can be registered for real publicity purposes only based on the document attesting the legal relations between the constructor and the owner. Though, in case the debt is not cuantified, documents attesting the initial state of the asset and the final state after the work (reception agreement) will be needed.

Att. ELENA DAVIDESCU
SCA Vasile Deleanu - Avocaţi