Consideraţii privind accesiunea imobiliară artificială, cu privire specială asupra situaţiei în care constructorul a constituit un drept de ipotecă asupra construcţie
Considerations relating to the artificial immovable accession, with special attention to the situation in which the contractor established a mortgage right over the building

Summary/Abstract: Neither the Civil Code from 1864, nor the present Civil Code contain provisions relating to the nature of the ownership right over the building, in the assumption that the building was erected by another person than the landowner. Moreover, depending on the concrete situation in which the erection of the building was performed, the matter whether there is an ownership having as object the building may be put into question, namely whether it represents an asset or a thing, for the purposes of the civil law. In order to identify the concrete solutions, the regulation of the artificial immovable accession of the old or new Civil Code should be correlated with the provisions of Law no. 50/1991. The doctrine advanced the theory of atypical resoluble ownership as regards the situation of the building, namely the acknowledgment of an ownership right in the contractor’s assets and liabilities, which is affected by an imperative requirement the fulfilment of which produces effects only for the future. As long as the landowner does not express its will in the sense of positively exercising the right of accession, namely of taking the building into possession, the contractor should be acknowledged, as owner (according to the atypical imperative requirement) of the building, all attributes of the ownership right. Therefore, the contractor may validly conclude also acts of disposition having as object the building, no matter whether it is about acts of disposal or deeds of encumbrance with main or accessory real rights (in rem). Assuming that a mortgage right was established over the building, and the contractor – grantor of the mortgage – is deprived of, as a consequence of the artificial immovable accession, the ownership right over the building, the landowner cannot ignore the legal condition of the building from the time of its taking into possession, namely the fact that this building represents the subject matter of a mortgage. Up to the enshrinement of some express legislative solutions related to the controversial issues which it further raises, the artificial immovable accession, the doctrine and case law should provide adequate practical interpretations and solutions. This was also the purpose of our approach which we submit to the attention of the persons concerned with the issue of artificial immovable accession.

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