Uzucapiunea ca exerciţiu al unui drept potestativ. Între libertatea normei şi constrângerea jurisprudenţei

Rezumat

The present study aims at a retrospective analysis of the way in which judicial practice has transposed the successive regulations of civil law and civil procedural law on the subject of usucaption of immovable property. Given the nature of the topic, the study cannot and does not attempt to be exhaustive. Some issues have merely been recalled, but seen through the prism of the latest legal provisions, in particular those contained in Law No 71/2011 implementing the new Civil Code. This law, in our opinion, proved to be of major importance, as it confirmed some interpretations of the doctrine, implicitly invalidating others, in controversial issues concerning usucaption, caused by the lack of clarity of some texts or, sometimes, even by the lack of regulation of transitional situations. The role of resolving difficult issues of judicial practice has fallen to the courts of uniform interpretation and application of the law. Unfortunately, they have not provided the continuity solutions so necessary in the application of an institution for which the passage of time is an essential condition.
Romania's historical context required the parallel operation, for a long period of time, of two different real estate advertising systems for the acquisition and publication of real rights. Unified regulation and measures were needed to ensure a smooth transition to a property advertising with constitutive effects as of right. Inertia in the efforts to establish a general land register for all properties in the country has prevented the adoption of a land register law in which the registration of real rights would have constitutive legal effect. This is why such a regulation in the new Civil Code was long overdue. In matters of usucaption, until the date of completion of cadastre work throughout the country, judicial practice is still faced with the problem of finding a solution that reconciles the publicity with the effect of enforceability governed by Law No 7/1996 on Cadastre and Real Estate Publicity, with that with the constitutive effect of law, governed by Decree Law No 115/1938.
Under these circumstances, the invocation of the right of usucaption, the nature of which as a potestative right is not contested, is linked to the interpretation of the provisions of the special laws, the new Civil Code and the new Code of Civil Procedure, which has resulted in divergent doctrinal opinions and uneven judicial practice.
Keywords: usucaption; potestative right; conforting publicity; constitutive publicity; possession; land register; action for confirmation.