Relevance of the Case
The complexity of the laws regarding restitution of properties abusively taken during the communist era, together with legislative and jurisprudential inconsistencies resulting from modifications over time, and the high number of restitution requests still unresolved, have imposed the necessity of adopting a uniform normative framework to accelerate and finalize the restitution process – Law no. 165/2013.
Under this law, a system of compensation by points was established, applicable when restitution in kind of abusively taken properties is no longer possible.
Regrettably, the assessments made by the National Commission for Real Estate Compensation are not always fair, for various reasons, which requires appealing to the courts with a request to annul the decision and obliging the authority to issue a new compensation decision that fully respects the rights of the interested person.
This case is particularly relevant from the perspective of a success obtained by the Brisc Legal team of lawyers: annulment of a partial validation decision, as well as obliging the Commission to issue a new compensation decision that takes into account the full ownership right over the land abusively taken during the communist period.
Summary of the Facts
In fact, the claimants were notified of a Decision of partial validation issued by the National Commission for Real Estate Compensation (CNCI), by which the authority decided to validate partially the right, namely only for an area of 1,275 sq.m. out of the total 5,100 sq.m. which was the subject of the compensation file.
In the preamble of the Decision it was indicated that the claimants have the right to 2/8 share through their father, who was deceased at the time the decision was issued, given that the restitution request was formulated by their mother, as wife of their father and heir for the 2/8 share according to the certificate of heirs.
In other words, the claimants were not recognized a right of their own to restitution after the father, but only the 2/8 share inherited through the deceased mother, on the reasoning that they did not formulate their own restitution request.
PROCEEDINGS AT TRIAL, IN FRONT OF MUREȘ TRIBUNAL
Through a statement of claim, the claimants, represented by attorney Horațiu Brisc, specialized in restitution of abusively taken properties, requested, first and foremost, annulment of the partial validation Decision and obliging the CNCI to issue a new compensation decision for the entire area of 5,100 sq.m., in a number of points to be correctly determined based on the correct evaluation of the properties in question.
The Brisc Legal team argued that, with respect to the reason given for partial validation, the CNCI incorrectly considered that the failure of the claimants to formulate their own restitution request within the time provided by Law no. 18/1991 under penalty of forfeiture justifies excluding their right to the compensation they would otherwise have as heirs of their father.
Thus, the claimants were not recognized a right of their own for restitution after the father, but only the inherited share of 2/8 through the deceased mother, the only heir accepted after the author father, who had requested restitution in her own name.
In demonstrating their right, the lawyer showed that such application and interpretation of the law had been made by CNCI without respecting the rules of legal inheritance.
Invoking provisions of the Civil Code of 1864, the claimants, through their attorney, showed that the part of a renouncing heir benefits their co-heirs (acrescence), and that if there are no heirs in that degree, inheritance passes to the next degree—and that under Law no. 319/1944, the surviving spouse inherits all the assets of the other spouse in absence of relatives indicated by law.
The claimants showed that the omission of other categories of heirs to formulate their own requests—equivalent to a corresponding renunciation of inheritance—benefits by acrescence the surviving spouse, i.e. the mother of the claimants, who was the only person who formulated a request in her own name.
Thus, she alone shall inherit from the deceased author (father of the claimants), in respect of the land area of 5,100 sq.m. which is the subject of the compensation file, and the court must recognize her right to restitution by equivalent with respect to the entire area mentioned, not only with regard to the area of 1,275 sq.m.
The claimants’ attorney argued that this is the correct application and interpretation of the rules regarding restitution of property as established by jurisprudence, and not the interpretation adopted by CNCI at the time of issuing the partial validation decision.
The CNCI requested dismissal of the action as unfounded and dismissal of the request to oblige them to pay litigation costs. In defense, the CNCI asserted that the proposal of partial validation was motivated by the fact that the claimants have the 2/8 share from their father, given that the restitution request was formulated by their mother, as wife of the author and heir for that share.
DECISION OF MUREȘ TRIBUNAL
The Mureș Tribunal, in agreement with Brisc Legal’s reasoning, held that the mother of the claimants requested the entire area of land of 5,100 sq.m., not just the share that would correspond to her as surviving spouse.
Thus, consistent with the arguments, the court held that only heirs who formulate a claim shall benefit from restitution of property, and such heirs shall gather by acrescence the shares of other legal heirs who did not formulate claims under Law no. 18/1991.
Consequently, the court stated that CNCI incorrectly considered that the restitution claim formulated by the claimants’ mother can only be granted within the limit of the 1/4 share which belongs to her in competition with other legal heirs, the fact being evident that even the value of compensation due was not correctly established, following that for its calculation the entire area of 5,100 sq.m., not just the 1,275 sq.m., must be taken into account.
Under these conditions, the Mureș Tribunal admitted the appeal and ordered CNCI to issue a compensation decision, in the names of the claimants, for the property land of 5,100 sq.m. in consideration of 956,250 compensation points, obtaining compensation four times greater than the amount awarded by the authority.
APPEAL PROCEEDINGS
The CNCI appealed, reiterating its reasons for issuing a partial validation Decision and without developing new legal reasoning. In these conditions, the Cluj Court of Appeal rejected the CNCI’s appeal, the Mureș Tribunal’s sentence being maintained in full.