OVERVIEW ON THE MORTGAGE OVER THE RIGHT OF SUPERFICIES DERIVING FROM THE REAL ESTATE LEASING AGREEMENT IN THE CONTEXT OF ITS TRANSMITTAL TO THE ABSORBENT COMPANY
OVERVIEW ON THE MORTGAGE OVER THE RIGHT OF SUPERFICIES DERIVING FROM THE REAL ESTATE LEASING AGREEMENT IN THE CONTEXT OF ITS TRANSMITTAL TO THE ABSORBENT COMPANY

Summary/Abstract: The leasing contract is, without a doubt, one of the North American-inspired contracts which, implemented in the local legislation, generated the diversification of the local market, by entering the multinational companies holding expertise and know-how in the field, increasing the opportunities and turnover of the professionals. Thus, as an effect of the entry into force of Government Ordinance no. 51/1997 on leasing operations and leasing companies (hereinafter referred to as Ordinance 51), multiple leasing companies were set-up which delivered added value, in the difficult economic context of that period, precisely through its wide addressability (movable and immovable goods), being an alternative to the classic bank loan (and very difficult to be granted in those years when the Romanian banking system, mostly owned by State, still had a long roa until its consolidation), the provision of certain financial advantages / business and favoring intermediation operations, in the broad sense, respectively the interposition between the producer and the beneficiary. The purpose of this article is to highlight some (atypical) aspects of the right of superficies derived from the real estate leasing contract, which probably were not sufficiently used by the leasing companies in the context of securing the bank loans contracted by them, to support and develop the current activity using the real estate mortgage over the right of superficies, as provided by the Article 2379, 1st paragrapgh, letter d) of the Civil Code, with the mention that the general framework is provided by the Article 24 of Ordinance 51, in particular. It should be mentioned that such a valid mortgage right is maintained and it can be transferred from the leasing company's patrimony to the absorbent company's patrimony in the hypothesis of a merger by absorption, respecting the legal conditions of procedure, form and opposability. To the same extent, as a result of the analysis, proposals will be submitted de lege ferenda which may be useful to the business communities and legal professionals.

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