Preliminary sale-purchase agreement left unperformed for 24 years. Background of the dispute
The decision under review presents an interesting case concerning the performance of a bilateral promise of sale concluded in 2001, in which the buyer paid the full price of the property and took possession of it, but the formal transfer of the ownership right was never completed by an authentic deed.
The dispute arose because the persons who had originally acquired the apartment through an award at public auction never registered their ownership right in the land register, even though they subsequently entered into a preliminary sale-purchase agreement and received the full price from the buyer.
Under these circumstances, the buyer asked the court to:
- find that the promising sellers held co-ownership of the apartment;
- order them to carry out the formalities necessary to register their ownership right in the land register;
- authorize the buyer to carry out these steps on their behalf if they refused;
- order the promising sellers to execute the authentic contract;
- issue a decision to serve as an authentic sale-purchase deed.
Facts established by the court
Award of the apartment at public auction
The court found that on 16 January 2001, in the course of a tax enforcement procedure, an apartment located in the city of Cluj-Napoca was sold through a public auction organized by the competent tax authority.
The property was awarded to a married couple, who paid the full price on 17 January 2001, a fact proven by the minutes of the auction for immovable property. As a result of the award, they acquired the ownership right over the apartment.
Conclusion of the preliminary agreement and full payment of the price
Approximately three months after the award, namely in April 2001, the successful bidders entered into a preliminary sale-purchase agreement with the claimant.
Under this agreement, the parties agreed to transfer the ownership right over the apartment in exchange for a price.
The court found that:
- the buyer paid the full agreed price;
- payment was made on 27 April 2001;
- possession of the apartment was handed over to the buyer on the same day.
From that moment on, the claimant remained in possession of the property and exercised the prerogatives corresponding to an owner, but was unable to obtain registration of her right in the land register.
The problem of registering the apartment in the land register
An essential aspect of the case concerned the legal status of the apartment in the land register records.
At the time of the award and the conclusion of the preliminary agreement, the apartment had not yet been registered in the land register. Subsequently, in 2002, the apartment was registered in the land register, but not in the name of the successful bidders — rather, in the name of the commercial company that had been the debtor in the enforcement proceedings.
Thus, although the successful bidders had acquired ownership through the public auction back in 2001, the land register records were never updated to reflect the actual legal situation.
The notice sent before the proceedings
In 2025, almost 24 years after the preliminary agreement was concluded, the claimant sent a notice requesting:
- that the formalities for registering the right acquired through the award be carried out;
- attendance before a notary to execute the authentic contract;
- that a mandate be granted to carry out the necessary steps.
The defendants took no action to perform the obligations they had assumed, which is why the court action was brought.
Applicable legal provisions
Art. 35 of the Code of Civil Procedure
The court examined the head of claim seeking a declaratory finding of the existence of the right by reference to the following provision:
“A person who has an interest may request a finding as to the existence or non-existence of a right. The request cannot be admitted if the party may seek the enforcement of the right through any other means provided by law.”
Art. 33 of Law No. 7/1996 on cadastre and real estate publicity (the version applicable in 2001)
“If a real right has been registered in the land register in favor of a person, in accordance with this law, it is presumed that the right exists in that person’s favor, if it was acquired or established in good faith, as long as the contrary is not proven. If a right has been cancelled from the land register, it is presumed that the right no longer exists.”
Art. 1074 of the 1864 Civil Code
“The creditor has the right to obtain the exact performance of the obligation and, failing that, is entitled to damages.”
(This provision embodies the principle of specific performance of obligations.)
Art. 1077 of the 1864 Civil Code
The court applied the provisions concerning the performance of an obligation to do:
“Where an obligation to do has not been performed, the creditor may likewise be authorized to carry it out himself, at the debtor’s expense.”
Art. 5(2), Title X of Law No. 247/2005
The court found that this provision established, at the legislative level, the practice of issuing decisions that take the place of a contract:
“Where, after the conclusion of a preliminary agreement concerning land, with or without buildings, one of the parties subsequently refuses to execute the contract, the party who has performed its obligations may apply to the competent court, which may issue a decision to take the place of the contract.”
Art. 1669 of the Civil Code
The court noted that the current Civil Code enshrines the same legislative solution:
“Where one of the parties that concluded a bilateral promise of sale unjustifiably refuses to execute the promised contract, the other party may request the issuance of a decision to take the place of the contract, provided all other conditions of validity are met.”
Art. 159(5) of the Fiscal Procedure Code
The court verified that the tax obligations relating to the transfer of the ownership right had been fulfilled.
Art. 57(1) of Government Emergency Ordinance No. 80/2013
The court also verified proof that the obligations owed to the homeowners’ association had been paid.
Why the court upheld the claim
The successful bidders had already acquired the ownership right over the apartment
The court found that the ownership right over the apartment had already been acquired by the defendants back in 2001, through the award at public auction and full payment of the price.
Consequently, the land register did not reflect the actual legal situation.
There was a legitimate interest in seeking a declaratory finding of co-ownership
Because the land register still showed the debtor company subject to enforcement, rather than the successful bidders, the court held that the claimant had the requisite interest in seeking a finding as to their ownership right.
Moreover, because the property had been acquired during the marriage, the court found the existence of undivided (devălmășie) co-ownership, rather than co-ownership in shares.
The defendants had not performed their obligation to carry out the registration formalities
The Local Court found that, although they had assumed the obligation to take the steps necessary to register the ownership right in the land register, the successful bidders had not carried out these formalities even after more than two decades.
On the basis of Art. 1077 of the 1864 Civil Code, the court held that the claimant could be authorized to carry out these steps herself, in the name and on behalf of the defendants.
The claimant had fully performed the obligations she assumed under the preliminary agreement
A decisive argument for upholding the claim was the fact that the claimant:
- paid the full agreed price;
- took possession of the apartment;
- complied with all the obligations assumed under the preliminary agreement.
The court held that a party who has performed its obligations is entitled to obtain specific performance of the promise assumed by the other party.
There was an unjustified refusal to complete the authentic contract
The Local Court held that there was an unjustified refusal by at least one of the defendants to carry out the formalities necessary to execute the authentic contract.
The court gave weight to:
- the extremely long period of approximately 24 years;
- the notice lawfully communicated;
- the passivity shown after receiving the notice.
All the conditions for issuing a decision to take the place of an authentic deed were met
The court verified and found that:
- a valid preliminary agreement existed;
- the price had been paid in full;
- the claimant had performed her obligations;
- the defendants were unjustifiably refusing to complete the contract;
- the tax obligations relating to the transfer had been fulfilled;
- there were no arrears owed to the homeowners’ association.
Under these circumstances, all the requirements for issuing a decision to take the place of an authentic deed were met.
The court’s ruling
The Cluj-Napoca Local Court fully upheld the claim and ordered:
- a finding that the successful bidders held undivided (devălmășie) co-ownership over the apartment;
- that they be ordered to register the ownership right;
- that the claimant be authorized to carry out the formalities in case of refusal;
- that the defendants be ordered to execute the authentic contract;
- that, in case of refusal, the final decision would take the place of an authentic sale-purchase deed.
Conclusions
The decision is a notable example of the application of the principle of specific performance of obligations assumed under a preliminary sale-purchase agreement. The ruling confirms that a person who has paid the full price and performed all of their obligations can obtain, even after a very long period of time has passed, a decision that takes the place of an authentic deed, where the promising seller unjustifiably refuses to complete the transfer of the ownership right. In matters concerning preliminary sale-purchase agreements, land register registration, performance of an obligation to do, and the issuance of a decision to take the place of an authentic contract, this ruling offers important guidance for judicial practice.
Possession and use of the property interrupt the limitation period for the right of action
A particularly noteworthy aspect of this case is the fact that approximately 24 years passed between the conclusion of the preliminary sale-purchase agreement (2001) and the bringing of the action.
At first glance, one might think that the substantive right of action to obtain a decision taking the place of an authentic deed would have become time-barred. However, even in the recent case law of the High Court of Cassation and Justice, it has been held that the exercise of possession by the promising buyer and the voluntary performance of the obligations assumed under the preliminary agreement are incompatible with the existence of a definitive refusal to perform on the part of the promising seller.
In one particular decision, the High Court of Cassation and Justice held that, in the case of bilateral promises of sale, where the promising buyer has taken possession of the property and continues to exercise possession over it as a result of the performance of the preliminary agreement, the limitation period for bringing an action seeking a decision to take the place of a contract cannot be assessed in the abstract, by reference solely to the date on which the preliminary agreement was concluded. The Supreme Court held that the voluntary and continuous performance of the agreement by the parties, evidenced by:
- payment of the full price;
- handover of possession of the property;
- uninterrupted exercise of possession by the buyer;
- the promising seller’s tolerance of this situation,
demonstrates that the legal relationship arising from the preliminary agreement continued to be performed even after it was concluded.
In the case under review, the claimant not only paid the full agreed price, but also took possession of the apartment back in 2001, exercising possession over it for more than two decades without any opposition from the promising sellers.
This factual situation confirms the existence of voluntary and continuous performance of the preliminary agreement and constitutes an additional argument in favor of upholding the claim seeking a decision to take the place of an authentic deed.
In practice, the solution established by the High Court is particularly important for the many situations encountered following the privatizations and real estate transactions of the 1990s–2000s, in which buyers paid the full price and took possession of properties, but the registration and authentication formalities were never carried out for many years.
In such cases, the existence of possession and the actual use of the property are essential elements that can demonstrate the continuity of performance of the contractual relationship and can defeat defenses based solely on the expiry of the general limitation period.
Legal assistance in real estate disputes and the enforcement of promises of sale
In the case under review, the interests of the claimant — the promising buyer who paid the full price of the property and obtained a decision taking the place of an authentic sale-purchase deed — were successfully represented by the lawyers of Brisc Legal, a team of Cluj-Napoca lawyers experienced in real estate litigation, actions for the enforcement of preliminary sale-purchase agreements, land register registration cases, land register rectifications, and disputes arising from the non-performance of contractual obligations.
If you find yourself in a similar situation — you have entered into a preliminary sale-purchase agreement, paid the agreed price, and taken possession of the property, but the seller refuses to appear before a notary or to carry out the formalities necessary for the transfer of ownership — our team can provide you with legal advice, assistance, and representation to secure your rights.
Our experience includes representing clients in proceedings for decisions taking the place of an authentic deed, land register disputes, actions for the performance of obligations to do, as well as complex disputes concerning ownership rights over real estate.
For a legal analysis of your situation and to identify the most effective legal solutions, we invite you to contact the lawyers of Brisc Legal Cluj-Napoca and benefit from the assistance of a team specialized in real estate law and contractual disputes.