Relevance of the Case – Correct Determination of ANRP Compensation
Law No. 165/2013 was meant to provide solutions that ensure effectiveness of the restitution of properties abusively taken during the communist regime, seeking to assimilate the recommendations made by the European Court of Human Rights on this matter.
Aside from the flaws of the law itself, in practice there are numerous situations in which the number of compensation points awarded to an entitled person is calculated incorrectly—so that the number awarded is significantly lower than what is due under the law.
In order to remedy this situation and to obtain a compensation decision by points that reflects the real value of the property abusively taken, the person involved must file, before the courts, a challenge against the already issued compensatory decision, requesting that the National Commission for Real Estate Compensation issue a new decision.
Summary of the Facts
In fact, the plaintiff, represented by Brisc Legal attorneys who specialize in ANRP litigation, acquired in 1983 together with her husband an apartment in Cluj-Napoca. In 1987 the plaintiff’s husband left Romania with a tourist visa, but did not return when the visa expired, which led to the state taking over the one-half share of the property, by virtue of Decree No. 223/1974.
In 1988 the plaintiff herself left Romania by legal means. The remaining half share was taken by the Romanian State. The expropriation by the state was abusive, under Decree No. 223/1974, according to which people who requested permanent departure from the country were obliged to transfer ownership of their personally owned properties to the state.
The state granted a loan for the acquisition of the apartment which was not repaid; the outstanding amount was 27,019.50 lei at the time the plaintiff left Romania. This amount was deducted from the compensation of 40,000 lei awarded under the 1989 Decision for the state takeover of the one-half share. Thus, at the time of the abusive takeover, the plaintiff was paid only the difference of 12,980.50 lei.
Despite this, for the one-half share taken by the communist state when the plaintiff’s husband left the country, no compensation had been awarded.
By the compensation decision issued by the defendant National Commission for Real Estate Compensation, the plaintiff was granted 66,196 points for the half-share of the apartment in Cluj-Napoca. Apart from the fact that the value of the points was calculated using an erroneous notarial grid, from that value was illegally deducted the sum of 31,693.50 lei, representing the unpaid state loan.
PROCEEDINGS IN TRIAL AT THE CLUJ TRIBUNAL – POINTS UNDER LAW NO. 10/2001
By a lawsuit, the plaintiff, represented by attorney Horațiu Brisc, specialist in obtaining ANRP compensation, requested the court to annul the compensation decision awarding 66,196 points and to order the defendant to issue a new compensation decision for the half-share of the apartment abusively taken by the wife who legally left the country.
In her pleading, Brisc Legal’s team showed that from the decision issued in 1989 by the Cluj County Popular Council it appears that, in reality, the loan granted for the construction of the dwelling was considered totally repaid by the plaintiff, being deducted from the amount of compensation awarded at the time of the takeover of the half-share due to the legal departure from the country.
However, by analyzing the verification report of the compensation file, it appeared that the authority did not take this circumstance into account.
Further, the lawyers specialized in Law No. 10/2001 argued that compensation must be granted for the half-share abusively taken as a result of departure from the country by the plaintiff’s husband.
They also showed that the authority used, in calculating compensation points, the notarial grid valid for the year 2013, contrary to the decision of the High Court which holds that the valuation of the property must be made using the notarial grid in effect in the year prior to issuance of the compensation decision by the National Compensation Commission.
The Cluj Tribunal, consistent with arguments developed by Brisc Legal, admitted the plaintiff’s claim, annulled the compensation decision, and ordered the National Commission for Real Estate Compensation to issue a new compensation decision for 185,991 compensation points. The Tribunal explicitly held that compensation should be granted for the half-share abusively taken without payment in 1988 when the spouse legally left the country, using a value of 5,700 lei/sqm for a property located in the Mărăşti neighborhood, according to the notarial grid for the year 2020.
PROCEEDINGS IN APPEAL, BEFORE CLUJ COURT OF APPEAL
By the appeal filed, the National Commission for Real Estate Compensation reiterated the arguments from the trial court, as described above.
The Cluj Court of Appeal found that the court of first instance correctly assessed the factual situation, based on the evidence administered in the case, as well as properly applied the legal provisions applicable in the matter, and upheld the decision of the Cluj Tribunal.