Surface rights

Concept / Applicable legal regime / Establishment of the right / Content of the right / How we can help you

 

Notion

 

As a general rule, the owner of the right of ownership of a building is also the owner of the right of ownership of the related land (e.g. the land under the building, as well as the land necessary for the normal operation of the building).

 

In certain situations, the owner of a building is not also the owner of the land on which it stands, but only has a right of use.

 

A building lease is a right composed of two distinct rights: (i) the right of ownership of a building and (ii) the right of use of the land on which the building stands (e.g. the land under the building and the surplus land necessary for the normal operation of the building).

 

The surface right is different from the situation of a person who is the owner of a building and has a certain piece of land in use, assigned by the Romanian state authorities before 1990. For the latter situation please refer to the section Right of use of land or the section Prefect’s Order.

 

Applicable legal regime

 

In Romania, the right of superficies has two distinct regulations, depending on the date on which the right came into being.

 

Surface rights acquired before 01.10.2011 are governed by the old Civil Code.

 

On the other hand, building rights acquired as from 01.01.2011 are governed by the new Civil Code.

 

Establishment of the right

 

The right of superficies can be constituted in various forms: (i) by means of a contract, (ii) by means of a will, (iii) by usucaption, etc.

 

By means of a contract, the building lease can be established both for a consideration (e.g. for a monthly/annual fee, etc.) and free of charge (without any consideration in return).

 

Content of the right

 

As a complex right, the building lease concerns (at the same time) both the right of ownership of the building and the right of use of the land.

 

As a general rule, the right of superficies is exercised under the conditions set out in the deed of constitution (e.g. by the contract which gave rise to this right).

 

The holder of the right can dispose of it freely (e.g. by sale, donation, etc.).

 

What needs to be emphasised is that, as long as the building exists on the land, the right of use of the land can only be alienated and/or encumbered (e.g. by the creation of a mortgage) together with the right of ownership of the building.

 

If the holder of the surface right is disturbed in the exercise of his right, he has a legal remedy consisting of a confessional action, which can be brought at any time and against any person (including the holder of the right of ownership of the land).

 

A confessory action is an action by which the holder of a surface right asks the court to have his right recognised and protected.

 

How we can help you

 

Our team of lawyers can help you with any aspect of surface rights:

 

• determine whether you are the holder of a surface right or similar right;
• identification of the legal regime applicable to the surface right;
• determining the content of the surface right (what you can and cannot do as a superficiary);
• protecting your surface rights in a dispute.

 

Further information on building law