Real Estate 2021

Last Updated April 13, 2021

Romania

Law and Practice

Authors



Mușat & Asociații is a leading, full-service Romanian law firm that has been advising leading national and international companies, governmental authorities, financial institutions and investment funds for over 30 years. The firm has 13 partners and more than 100 dedicated lawyers. Musat & Asociatii’s market-leading Real Estate practice has a strong record of advising developers, retailers, investors, financial institutions and funds on the full range of legal services, including the acquisition of land, forestry land, construction and maintenance, permitting aspects, residential, office and commercial projects, mixed-use scheme developments and asset management work. The practice has extensive experience in helping real estate developers navigate the intricacies of local laws and optimise transaction outcomes thorough due diligence and insightful strategic advice. Major retail market leaders turn to Mușat & Asociații for assistance with their various real estate mandates, and the practice’s expertise on transactional and financial briefs is of particular benefit to international consultancies and investment companies.

The main sources of real estate law in Romania are as follows:

  • the Romanian Constitution, as further amended, supplemented and republished;
  • the Civil Code, which entered into force on 1 October 2011;
  • Law No 71/2011 for the enforcement of the New Civil Code;
  • Land Law No 18/1991, as further amended, supplemented and republished;
  • Law No 50/1991 on authorisation of construction works, as further amended, supplemented and republished;
  • Law No 10/1995 on quality in constructions, as further amended;
  • Law No 112/1995 on the legal regime of dwellings transferred within the state property, as further amended;
  • Law No 7/1996 on cadastral works and the real estate publicity system, as further amended, supplemented and republished;
  • Law No 10/2001 on the legal regime of real estate abusively taken over between 6 March 1945 and 2 December 1989, as further amended, supplemented and republished;
  • Law No 350/2001 on territorial planning and zoning, as further amended and supplemented;
  • Law No 165/2013 on measures to complete the process of restitution in kind or by equivalent of properties abusively confiscated during the communist regime in Romania;
  • Law No 17/2014 on several measures regulating the sale and purchase of agricultural lands located in the extra urban areas; and
  • Law No 312/2005 regarding the acquisition of ownership rights over real estate by foreign citizens, stateless persons and foreign legal entities.

Despite the COVID-19 pandemic, the Romanian real estate market registered 30% growth in 2020, reaching a value of EUR900 million, according to public sources. This singular performance in Central and Eastern Europe was favoured/supported by a number of major transactions.

The largest transaction ever recorded in Romania took place in 2020: the sale of four office buildings with a total area of 118,000 sq m for EUR307 million.

The threshold of EUR100 million was exceeded by several other transactions.       

Approximately 85% of the total volume of transactions took place in Bucharest.

Disruptive technologies have had an obvious impact on the real estate market in Romania, as in all other areas of practice.

Some real estate agencies started to develop apps for marketing management and sales of residential property, facilitating the monitoring of the selling process.

Another point of interest is “green” technology, with many developers trying to reduce any negative impact on the environment by looking to integrate smart home products, in both retail and commercial projects.

To enhance clients’ experience, virtual reality and architectural renderings are also used more often.

Office buildings have sensor-based technology, video monitoring and security solutions all connected via Wi-Fi, technology that more and more retail consumers want in their homes as well.

Moreover, large amounts of data on blockchain might help to reduce bureaucracy or make property ownership registries more transparent.

Furthermore, many developers have had the chance to work with 3D modelling programs and have been able to fine-tune any construction detail, leading to increased consumer profits from a much better product.

The Civil Code stipulates that the ownership right over properties will only be considered as acquired following registration in the Land Book.

However, this provision is not yet in force. It will become applicable country-wide only after the completion of the cadastral works for each territorial administrative unit. Until then, the registration of the real estate rights ensures opposability towards third parties and the Land Book provisions have an informative effect.

The deadline for completing the country-wide cadastral works is 2023.

General

Property rights include several attributes: possession, use and disposition.

In addition to exclusive ownership, common ownership (two or more persons holding quotas over the property) is also possible, which can be either:

  • co-ownership – the quotas are divided; or
  • joint ownership – the quotas are undivided.

The attributes of property rights are as follows:

  • the usufruct right – using an asset owned by another person and benefiting from its products;
  • the right of use – using an asset owned by another person and benefiting from its products only for family and own needs;
  • the right of habitation – similar to the right of use, but applicable where the property is a dwelling;
  • the easement right – owning a plot of land (the dominant tenement) and having certain rights in connection with another person’s plot of land (the servient tenement); and
  • the superficies right – owning or constructing a building on another person's land and also using the relevant land.

In addition, assets that constitute the public or private property of the municipality or the Romanian state can be used on the basis of a concession right.

In addition to the main sources of real estate law, the following legal provisions should be taken into account regarding transfer of title:

  • Law No 36/1995 regarding notaries public, as subsequently amended;
  • Company Law No 31/1990, as subsequently amended; and
  • the Romanian Fiscal Code.

Romanian law does not include specific laws for different types of real estate; the applicable laws will be the same, regardless of whether the transfer of title concerns a property in the residential, industrial, offices, retail or hotels sector. Notwithstanding the general rule, certain specific conditions must be fulfilled in order for certain types of real estate to be validly transferred (eg, agricultural land, patrimonial assets etc), to be assessed on a case-by-case basis.

There are several ways to carry out a lawful and proper transfer of title: transfer agreement authenticated by a notary public; donation; inheritance; adverse possession; accession; public tender procedure; and court ruling.

After the completion of the cadastral works per administrative unit, the acquisition of the property right will be conditional upon the registration of the relevant transaction in the Land Book. Until then, the registration is only enforceable against third parties.

This effect is especially important if, for example, there are two or more buyers of the same real estate, who have concluded different agreements with the same owner by which ownership exclusive rights have been transferred. The rule is that, if acting in good faith, the first to register the right in the Land Book has the preferred title.

In light of the laws that applied to real estate during the communist regime, investors could be exposed to certain risks, so some choose to protect their investments by concluding insurance policies. This practice is on the rise but is not yet common in Romania.

As a precautionary measure, before purchasing a property, buyers usually perform real estate due diligence covering fiscal, legal, technical and/or environmental matters. This practice did not change during 2020 as a result of the COVID-19 pandemic.

The purpose of the legal due diligence is to identify and anticipate any impediments. Buyers are interested in analysing the validity of the ownership chain, permitting aspects, environmental legal issues, corresponding corporate approvals, etc. The lawyer’s role is to recommend appropriate solutions to protect the title and, if necessary, assist the parties in implementing them.

Romanian legislation imposes on the seller the obligation of warranty against eviction (meaning any loss of possession or ownership rights over the property, in whole or in part, due to a successful claim in court by a third party to a real right over the property) and against hidden defects (existing or caused before/at the time of handover, but which could not be discovered by a diligent buyer without specialised assistance).

The parties may agree to exclude or limit the seller's liability. However, it is forbidden to exclude or limit liability if the damage is caused by an act committed intentionally or through gross negligence.

Moving forward, the parties may agree on additional representations and warranties depending on the specifics of the deal and the conclusions of the due diligence report.

If the seller does not observe its contractual obligations, the buyer is entitled to apply to the competent courts for:

  • in case of eviction – termination of the contract, refund of the purchase price and payment of damages; or
  • in case of hidden defects – their removal, asset replacement, corresponding reduction of the purchase price or termination of the contract.

The parties may agree that one party's failure to comply with certain obligations entitles the other party to terminate the contract by written notice. In this way, court intervention is not necessary.

Investors should first focus on the ownership title and chain, so the history of the real estate must be assessed in order to identify potential restitution claims or other aspects, such as related encumbrances or existing litigation.

In a sale by public tender of properties owned by the Romanian state or its administrative bodies, specific legal procedures must be performed and related conditions complied with.

The use, limits and conditions of construction are established by or depend on the city planning and construction regulations (zoning and general plans, urbanism certificates, building permits, etc), the environmental approvals and the rules applicable in order to protect historical monuments and archaeological sites.

Separately, the taxes and possibilities of financing the asset must be taken into consideration.

The "polluter pays" principle is applied in Romania, which means that the person who caused the pollution is liable for the damage it has caused.

If the buyer of a real estate asset did not cause the pollution or contamination, he needs to prove that it was generated before the title transfer, by the previous owner or tenant.

The urbanism certificate details the legal, economic and technical regime of the lands and constructions existing in a specific area at the date of the request.

The zonal urban plan (PUZ) is the regulatory instrument through which the integrated urban development of certain areas is co-ordinated.

These documents establish the permitted use of a piece of real estate and the conditions and restrictions to be observed in order to build, and are the preliminary documents to a building permit, which, in turn, provides much more specific parameters to be observed while carrying out construction works.

Investors are able to enter into specific development agreements with relevant public authorities in order to facilitate a project, as Romanian legislation provides for the possibility of establishing public-private partnerships under specific public procurement conditions.       

Expropriation can only take place for works of public utility, and only in exceptional circumstances.

Therefore, real estate can be transferred from private property to public property in exchange for a direct and prior compensation paid by the state to the owner.

In any disagreement, the court decides on the expropriation and establishes the compensation amount.

If disagreement relates to the compensation amount, the court will decide on it.

According to Romanian legislation, no stamp duty or transfer taxes are charged for direct transfers of real estate made by companies. The only fees to be paid are those for the notary public services (the amount varies depending on the value of transaction) and the registration with the Land Book (0.5% of the purchase price for legal entities). These are usually paid by the buyer, but the parties are free to agree otherwise.

In an indirect transfer of real estate (shares deal), Trade Register fees must be paid.       

Individuals and companies from the EU or EEA that are resident in Romania have the right to buy land under the same conditions as Romanian citizens and companies.

Non-EU or EEA resident persons and companies have the right to purchase land in Romania for the purpose of establishing a secondary residence or a registered office.

EU or EEA citizens and companies can purchase agricultural land or forests which are Romanian territory.

Other persons and companies, and stateless persons domiciled in a non-EU country, have the right to purchase agricultural land outside the city limits under conditions governed by international treaties, based on reciprocity.

In general, the main investors in the Romanian real estate market are large private companies. Following the trends of recent years, debt financing is the most popular form of financing.

In addition, the legislation provides a number of facilities that encourage development, including a tax exemption for reinvested profit. However, even if it is not reinvested, corporate tax has a fixed rate of 16%. Moreover, no fees (building tax or property tax) are charged for buildings and land that are part of industrial and technological parks.

Mortgage over Real Estate

In order to be valid, a mortgage agreement should meet the following requirements:

  • the amount for which it is constituted can be reasonably determined on the basis of the mortgage deed;
  • it identifies the parties;
  • it indicates the cause of secured obligations;
  • it accurately describes the mortgaged property; and
  • it is authenticated by a notary public.

To be enforceable against third parties, mortgages must be registered in the Land Book.

It is important to mention that an asset mortgage also includes any products, rents, constructions, improvements and movable assets naturally linked to the respective immovable asset.

Separately, the financing party may be interested in movable mortgages, mortgages over the shares of the holding company, and mortgages over proceeds or bank accounts.

As a general rule, Romanian legislation does not provide restrictions on granting security over real estate to foreign lenders.

Also, there are no restrictions on repayments being made to a foreign lender under a security document or loan agreement.

Since the immovable mortgage agreement must be authenticated by the notary public, a notary fee is paid by the mortgagor, the amount of which depends on the value of the secured amount.

Another fee must be paid for registering the mortgage in the Land Book (RON100 for each asset plus 0.1% of the amount of the secured debt). The assignment contract regulating the transfer of a debt secured by a real estate mortgage must also be authenticated by the notary public in order to be valid. The fee for this service is calculated by applying a percentage of 0.3% to the value of the assigned debt.

In a receivables assignment agreement, the registration fee for mortgages with the Land Book is fixed at RON100.

There are legal rules that must be complied with before an entity can give valid security over its real estate assets – financial assistance rules, corporate benefit rules, etc.

Romanian law does not allow a joint stock company to advance funds, make loans or provide guarantees for the subscription or acquisition of its own shares by a third party.

However, this provision does not apply to transactions concluded by credit institutions and other financial institutions in the normal course of their business, nor to transactions involving the purchase of shares by or for the company’s employees, provided that such transactions do not result in a decrease in net assets below the cumulative value of the issued share capital and of the reserves that cannot be distributed according to the law or the constitutive act.

The unilateral undertaking by a company of an obligation – granting a guarantee and creating security, especially in favour of a third party – that reduces its patrimony without obtaining a certain form of consideration in return is a violation of the principle according to which the main purpose of setting up a company is to generate profit. In this case, there is the risk that the security interest or guarantee may be challenged by a third-party creditor.

In addition, if the benefit received by the guarantor/security provider is not proportionate to the risk undertaken, there is a higher risk that the transaction will be void for corporate benefit grounds.

Corporate compliance rules are also relevant. For instance, certain transactions can only be carried out with the approval of an extraordinary general meeting of shareholders.

In order to start the foreclosure procedure, the creditor must have an enforceable title and the debtor's obligation must be certain, payable and due.

The rank of the real estate mortgage is determined by the order of applications for registration in the Land Book. A recorded lender has priority over the interests of unsecured creditors and also over the interests of secured creditors whose mortgage ranks are subsequent.

The Romanian legislation stipulates that the enforcement of a real estate mortgage is led by a bailiff. The procedure is supervised by the court and mentioned in the Land Book.

In certain circumstances, existing secured debts may become subordinated to newly created debt by operation of law – if a lower ranking creditor pays a superior creditor the amount of the debt, it succeeds to the rank of the superior creditor – or by agreement of the parties.

An important aspect is that, in the debtor's insolvency, the order of creditor debt recovery is established by law – any subordination agreements are no longer taken into account.

With regard to pollution or environmental contamination, Romania adopts the "polluter pays" principle, which means that the person who caused the pollution is liable for the damage it has caused. Therefore, the lender will only be liable if it is proven that he caused the pollution.

According to the insolvency legislation, the security interests created by a borrower in favour of a lender will not become void if the borrower becomes insolvent.

However, no interest, increase or penalty of whatever nature or accessory expense may be added to claims arising before the date of opening of the insolvency proceedings, except for privileged claims. Accordingly, the insolvency legal provisions stipulate that privileged claims are recorded in the final table of receivables up to the market value of the security, as established by the valuation report.

For claims preceding the date of the opening of the insolvency proceedings, the borrower will lodge its receivable claim along with the proofs of debt within a term set in the decision concerning the opening of the proceedings, under the sanction of losing its right to recover this amount.

Companies must switch existing agreements to Alternative Reference Rates (ARR) before the end of 2021.

ARR are almost risk-free one-day reference rates that have been identified as alternative benchmarks for main rates used on interbank loans.

In order to prevent the consequences, borrowers are encouraged to include certain terms in the agreements, which establish the use of ARR as replacement rates. Moreover, they must ensure the faithful observance of the initial agreement after the reserve provisions enter into force.

Thus, the result will imply a predictable, transparent and correct rate.

The main regulations and plans applicable to strategic planning and zoning are:

  • Law No 350/2001 regarding urban planning;
  • the general urban plan (PUG);
  • the zoning urban plan (PUZ); and
  • the detailed urban plan (PUD).

These plans are technical documents drawn up for the regulation and development of a locality (PUG), a determined area (PUZ) or a specific location (PUD).

General

The design, appearance and method of construction of new buildings and the refurbishment of existing buildings are regulated by Law No 50/1991 regarding construction works and Law No 10/1995 regarding quality in construction works.

Procedure

According to Law No 50/1991, as a general rule, construction works are allowed only on the basis of a building permit. In order to receive such permit, an urbanism certificate is required. This document contains the rules and parameters that have to be followed and complied with by the designer of the construction, and may not deviate from the requirements set forth by the urban planning documentation of the respective area.

Exceptions

However, the legislation also provides for exceptions to the rule of mandatory building permits. These include:

  • repairs to fences, when their shape and the materials from which they are made do not change;
  • repairs to roofs or terraces, when their shape does not change;
  • repairs and replacements of interior carpentry;
  • repairs and replacements of exterior carpentry, if the shape, dimensions of the gaps and the carpentry are kept, including in the situation when the materials from which the respective works are made are changed;
  • plasters, paints and interior floors; and
  • repairs to plasters, paints and plywood if the facade elements and the colours of the buildings are not modified.

The rules are stricter regarding historical monuments or lands and constructions located within the protection zones.

Legal Obligations

According to Law No 10/1995, in order to obtain quality constructions, it is mandatory to achieve and maintain the following applicable fundamental requirements throughout the existence of the constructions:

  • mechanical resistance and stability;
  • fire safety;
  • hygiene, health and environment protection;
  • safety and accessibility;
  • protection against noise;
  • energy saving and thermal insulation; and
  • sustainable use of natural resources.

The main legislation that applies to the development and designated use of individual parcels of real estate is:

  • Law No 10/1995 regarding quality in construction works;
  • Law No 50/1991 regarding construction works; and
  • Law No 350/2001 regarding urban planning.

Depending on the circumstances of each case, the building permit can be issued by the presidents of the county councils, the mayors of municipalities, localities or communes, or the mayors of the sectors of Bucharest.

The zonal urban plan and the detailed urban plan are approved by the local councils.

There are some situations when the consent of the neighbours is required – eg, for construction works that are necessary to change the designated use of existing buildings, or for the development of buildings with a use that differs from the neighbouring buildings.

If the neighbours refuse to issue the consent, a court decision can take its place.

As a general rule, a building permit is required in order to develop any new project or complete any major refurbishment. The procedure to be followed in order to obtain the building permit is as follows:

  • obtaining the urbanism certificate;
  • obtaining the point of view of the competent authority for environmental protection for investments that do not require the performance of an environmental impact assessment procedure;
  • notifying the competent public administration authority regarding the maintenance of the application for obtaining, as a final act, the building permit, for investments that require the performance of an environmental impact assessment procedure;
  • obtaining the permits and approvals required in the urbanism certificate and, also, the environmental approval;
  • preparing the technical documentation;
  • submission of the documentation to the competent public administration authority; and
  • obtaining the building permit (to be issued within 30 days of the filing of the application).

There may be additional requirements, on a case-by-case basis.

The public should be involved in all steps of the decision process related to the urban planning and designated use of the territory.

The public has the right to object and, if the response is not favourable, to challenge the administrative act issued by the authorities.

Within 30 days of the issuance of the building permit or, as the case may be, the administrative decision being made available to the public, any interested person may request the issuing local public administration authority to revoke the act, in whole or in part, if it has not produced legal effects.

If the authority’s response is unfavourable, any interested person may challenge the building permit or the rejection of the application, as the case may be, in court.

An interested person may be a person whose application for a building permit was rejected, as well as any other person who may claim an interest.

Romanian legislation regarding public procurement, the provision of services and concessions allows the conclusion of development agreements with the public authorities.

Agreements with utility providers must be concluded during the construction works, as well as after the completion of the construction works.

The State Inspectorate of Construction and the local authorities supervise the construction works and sanction any violation of the rules established by law or by the building permit.

In addition, any interested person can notify the authorities regarding the irregularities related to the construction works and can challenge the administrative acts issued by the authorities.

Romanian companies are regulated mainly by Companies Law No 31/1990 and may be categorised according to several criteria, with the most important being nationality and legal form.

Companies that are incorporated and have their registered headquarters in Romania have Romanian nationality, irrespective of the nationality or nature of their shareholders (ie, private individuals or legal entities, Romanian shareholders or other nationality shareholders).

When incorporating a company in Romania, its founders may choose between five types of companies:

  • general partnership (Societate in nume colectiv – SNC);
  • limited partnership (Societate in comandita simpla – SCS);
  • partnership limited by shares (Societate in comandita pe actiuni – SCA);
  • limited liability company (Societate cu raspundere limitata – SRL); or
  • joint stock company (Societate pe actiuni – SA).

It should be noted, however, that the SRL is the most common form of company incorporated in Romania, mainly due to the liability of shareholders being limited to the amount of share capital subscribed, and to its plain management rules and corporate structure.

Investments that entail the holding of real estate assets in Romania may also be carried out via Alternative Investment Funds (AIFs) specialised in real estate. Addressing both retail and professional investors, their incorporation has to embrace the form of a joint stock company.

All Romanian companies (as well as certain individuals or other legal entities expressly provided by law) must register with the Romanian Trade Registry prior to commencing trading operations, with the date of such registration being the date when the company is granted legal personality by virtue of law.

The capacity to establish a company is, nevertheless, conditional upon the fulfilment of certain legal requirements: individuals should not have been legally declared unfit, incapable or liable of criminal offences such as breach of trust, forgery, use of forgery, etc, and must have clean fiscal records, while legal entities should be legally registered and operating in the country where their main headquarters are located, with clean fiscal and criminal records.

An SRL may be established by one to 50 shareholders, while joint stock companies should have at least two shareholders, with no restriction on the maximum number of shareholders.

Bearer shares are not permitted under Romanian law.

There is no minimum share capital for SRL, SNC and SCS.

The minimum share capital for SA and SCA is RON90,000. The Romanian government may adjust the minimum level of the share capital, not more frequently than once every two years, according to the exchange rate, so that this amount is the equivalent of EUR25,000.

As a general rule, work/industry contributions from shareholders to the limited liability or joint stock companies’ share capital are not allowed.

The shareholders of a limited liability company are obliged to fully pay the subscribed registered capital upon incorporation. The same obligation applies for general partnerships and limited partnerships.

The most frequent forms of business in Romania are joint stock companies and limited liability companies.

The statutory bodies of a limited liability company are as follows:

  • the general meeting of shareholders (for limited liability companies with more than one shareholder) or the sole shareholder, in which case the sole shareholder shall exercise the powers of a general meeting of shareholders;
  • one or more directors; and
  • the auditors/cenzors, as the case may be. For limited liability companies set up by one to 15 shareholders, the appointment of cenzors is not mandatory. If cenzors or auditors are not appointed, the control of the operations will be performed by the shareholders who are not already acting as company directors.

A limited liability company can be managed by a sole director, or by more directors acting independently or by joint signature. The directors of a limited liability company can be both individuals and/or legal entities, regardless of their citizenship or nationality, and may be either shareholders or persons outside the company.

Joint stock companies may choose between two management systems: the classic one (unitary system) and the dualist management system.

If the unitary system of management is chosen, joint stock companies are managed by one or several directors, always in uneven numbers, organised as a board of directors. Entities that are legally obliged to have their financial statements audited must have at least three directors.

Under the dualist system, the company is managed by a directorate and a supervisory council. The directorate is formed by one or several members and exclusively exercises the management of the company, performing useful and necessary deeds for the accomplishment of the object of activity, except those under the competence of the general shareholders' meeting and the supervisory council. Inter alia, the supervisory council exercises continuous control over the directorate’s management of the company.

Directors do not need to be Romanian citizens. Managers of a joint stock company, under the unitary system, and members of the directorate, under the dualist system, are individuals. A legal entity may be appointed as director or member of the supervisory council. If a board of directors runs a company, one of them must be appointed as Chairman of the Board.

It is difficult to estimate the annual entity maintenance and accounting compliance costs, since the fees of the local accounting/tax compliance providers depend on the volume of activity of each relevant entity (eg, different fees apply depending on the number of invoices issued in a month).

The right to use a piece of real estate for a limited period of time without buying it can be acquired via:

  • a free-use agreement for a property (contract de comodat);
  • a concession agreement;
  • a lease agreement;
  • a lease of a dwelling; or
  • a lease of agricultural land.

In Romania, there are three types of lease:

  • a lease agreement;
  • a lease of a dwelling; and
  • a lease of agricultural land.

The rent is one of the terms of a lease agreement that can be freely negotiated between the parties.

In the context of the COVID-19 pandemic, the Romanian government adopted some measures to sustain the business sector, including the postponement of payment of rent and utilities for, but not limited to, small and medium enterprises (SMEs). The measures were applied during the state of emergency, but could only be benefitted from when certain cumulative conditions were met.

Length of Lease Term

Romanian legislation provides a maximum duration of a lease agreement (49 years), but no minimum. If the parties establish a longer duration, it will be automatically reduced.

If the parties did not provide an expiry date but did not intend to conclude the agreement for an indefinite period, the duration may be determined on the basis of the provisions of the Civil Code.

Maintenance and Repairs

The costs of any major and necessary repairs are paid by the landlord.

The expenses related to the day-to-day maintenance of the property are paid by the tenant. As an alternative, these may initially be borne by the landlord and then recharged to the tenant.

Rent Payment

Unless the parties agree otherwise, the rent is paid according to the common practice. If there is no common practice, the rent is paid:

  • in advance for the entire duration of the contract, if it does not exceed one month;
  • monthly, if the duration of the lease is longer than one month, but less than one year; or
  • quarterly, if the duration of the lease is at least one year.

However, the parties may agree on a different payment schedule.

COVID-19

During the lockdown in response to the pandemic, there were certain measures aimed at helping those tenants in need, mostly related to postponing the rent payments; currently this is freely negotiated between parties.

Unless the parties agree otherwise, the rent remains the same for the entire duration of the lease.

In Romania, the indexation of the rent is not mandatory, remaining at the choice of the parties. However, such clauses are common in long-term lease agreements.

It is important to mention that the courts may modify the parties' rights and obligations in light of exceptional and unforeseen events.

The parties may agree for the rent change to be carried out under certain conditions and on the basis of specific calculation methods.

It is important to note that many leases provide for annual indexation of the rent. Thus, the amount is changed or increased according to certain economic indicators.

The rental of real estate property located in Romania is generally VAT exempt without deduction rights. However, the right to opt for VAT (19% standard rate) may be exercised under certain conditions.

Although security deposits for rent are not required by law, they are common in practice. The same applies to fit-out works performed by the tenant.

In addition, in order to be enforceable against subsequent owners, the lease must be registered in the Land Book and the tenant has to bear the related fee. This is useful, but not mandatory.

The tenant has to pay no further additional costs at the beginning of a lease.

For the maintenance and repair of the common areas (for example, parking lots and gardens), each tenant pays an amount proportional to its leased area.

Payment of utilities and telecommunications can be freely negotiated by the parties.

If there are several tenants occupying a property, the general cost of utilities is usually paid by the landlord and re-invoiced to the tenants based on their consumption. As for telecommunications, each tenant normally concludes agreements directly with these suppliers.

Usually, the landlord concludes a building insurance policy and an insurance policy for natural disasters, with the latter being imposed by current legislation with regard to dwellings and residential units.

The tenant usually concludes insurance policies relating to the assets and business within the leased premises (assets, activity, persons).

The tenant must use the leased property prudently and diligently, according to the purpose provided in the agreement or the use presumed on the basis of certain circumstances (for example, previous use of the property).

Otherwise, the landlord may claim damage compensation and, as the case may be, even termination of the contract.

Under certain conditions, changing the leased property designation requires the approval of the neighbours.

If the tenant modifies the property or uses it in such a way as to cause damages, the landlord can claim compensation and, as the case may be, terminate the contract.

The landlord has the right to keep the improvements to the property made without prior approval and cannot be obliged to compensate the tenant for such.

It is the landlord’s choice to request the tenant to return the property to its original condition or the payment of compensation for any damage caused.

The rules established by the Civil Code apply to lease agreements, while the law provides for specific provisions for dwellings.

Most of these create additional protection for the tenant.

Agreements for the use of agricultural land (contractul de arendă) also fall under certain specific legal provisions.

According to the insolvency legislation, the agreements in progress are considered to be maintained at the date of the opening of the insolvency procedure, while any contrary provisions containing cancellation clauses are considered null and void.

However, in order to increase the value of the debtor’s patrimony, the judicial administrator/liquidator may terminate any agreement, the unexpired leases or other long-term agreements within three months of the opening of the insolvency procedure, as long as such agreements have not been fully or substantially executed by all parties involved. In this situation, the agreement is considered terminated as of the date of the notification sent to the contractor (tenant).

The insolvency legislation also entitles the contractor (tenant) to notify the judicial administrator/liquidator of the termination of the agreement. The judicial administrator/liquidator must respond within 30 days, under the sanction of the contract being considered terminated at the end of such term. Accordingly, the judicial administrator/liquidator will no longer be able to execute the contract.

On a separate matter, for claims that are dated before the opening of the proceedings, the landlord will lodge its statement of receivable along with the proofs of debt within the term set out in the decision to open the proceedings.

The most common forms of rent security that protect the landlord against the failure of the tenant to fulfil its obligations are:

  • rent deposits;
  • bank guarantees; and
  • parent company (corporate) guarantees.

As a general rule, the tenant does not have the right to continue to occupy the relevant real estate after the expiry or termination of a commercial lease.

If the tenant continues to occupy the premises and fulfil its obligations after the expiry date, without any opposition from the landlord, the lease is automatically renewed for an indefinite period, under the same conditions, including those related to guarantees.

If it is not expressly prohibited by contract, the tenant may conclude a sublease or even assign the lease. These agreements may cover all or a portion of the leased premises.

Any prohibition on subleasing also includes a prohibition on assigning the lease, but a prohibition on assigning the lease does not include a prohibition on subleasing.

If the duration is indefinite, any party may terminate the agreement by notifying the other party. The legislation stipulates the notice period that must be observed.

When one of the parties to the lease does not perform its obligations arising from this agreement without justification, the other party has the right to terminate the lease, with compensation, if applicable, according to law.

If the property is completely destroyed or can no longer be used according to its designated use, the agreement shall terminate ipso jure. If the impossibility of using the property is only partial, the tenant may claim either the termination of the lease or a proportional reduction of the rent, depending on the circumstances.

If the defects of the real estate are so serious that the tenant would not have concluded the lease if he had known of them, he may terminate the contract, in accordance with the law.

If the disturbance in law is so serious that the tenant would not have concluded the lease if he had known of them, he may terminate the contract, in accordance with the law.

If the performance of necessary repairs impedes the tenant’s use of the leased premises, the tenant may terminate the agreement.

If the tenant modifies the real estate (or its designated use) or uses it in such a way as to cause damages to the landlord, the latter can claim compensation and, as the case may be, terminate the contract.

There are also specific provisions regarding the lease of a dwelling and the lease of agricultural land.

However, the parties may also agree to other termination clauses.

Although the Romanian legislation does not impose such an obligation, the lease must be registered in the Land Book in order to be enforceable against subsequent owners. As a general rule, the tenant bears the fee (RON75) related to this service.

When the tenant fails to perform its obligations arising from this agreement without justification, the landlord has the right to terminate the lease and claim compensation, if applicable.

Upon prior written notification, and if the tenant refuses to leave the premises voluntarily, an eviction is carried out on the basis of a court decision. In addition, the tenant must pay the rent due until the date of the effective vacation of the premises.

There are certain circumstances that allow the public authorities to terminate a lease agreement by expropriation – for reasons of overriding public interest at a local or national level. More specifically, any lease agreement shall terminate ipso jure in the course of expropriation procedures, on the final judgment date.

If the leased property is registered in the Land Book, the agreement must also be recorded with the Land Book in order to be enforceable against any subsequent owner. Otherwise, the subsequent owner may terminate the lease. For properties not registered, the agreement must have a certified date prior to that of the transfer in order for the lease to be enforceable against any subsequent owner.

In principle, the development agreement concluded between an investor and a contractor provides for three possible options to price a construction project:

  • the estimated price, in which the costs of the project or the provided services are subject to an estimation, and as a consequence any increase of costs must be justified by the contractor. The beneficiary is not obliged to pay the increased price, unless this increase results from works or services that were not foreseen by the contractor at the conclusion of the contract;
  • the price set depending on the level of works or services, in which case the contractor has a legal obligation to inform the beneficiary regarding the state of works, the services provided and the costs incurred; or
  • the standard price, in which the contract is concluded for a global price, where the costs are not subject to any kind of modification, regardless of the circumstances that may arise during the development of the project.

It is worth mentioning that additional costs must be considered by the investor/developer, which may be caused by obtaining all the necessary legal permits required to start construction (eg, building permit).

Under Romanian legislation, construction works are undertaken by a contractor, while the design project of a construction is prepared by an architect and the civil engineer. The responsibility is divided between the contractor, the architect and the engineer. The contractor is liable for the quality of the work (eg, hidden defects of the construction or any other faults in the construction that may arise from improper execution of the project), whilst the architect or engineer are liable for any defects that may arise from a faulty design in the construction project.

The Romanian Civil Code provisions are as follows.

  • There is a general guarantee for hidden defects, whereby the contractor guarantees the beneficiary for any hidden defects over a period of three years starting from the reception of the project, or starting from the date when the defect was revealed (provided that the defect is discovered within the initial three-year period) (garantia pentru vicii ascunse). A hidden defect is defined as a defect that could not be discovered or foreseen by a prudent and diligent buyer.
  • Based on the freedom of agreement principle established under the law, the parties may agree on conventional guarantee terms, so a limitation of liability is possible. It will, however, not operate for those defects known to the contractor or those of which it should have had knowledge.
  • Guarantees for hidden defects are subject to special regulations.

Law No 10/1995 on quality in constructions provides that a ten-year guarantee is provided with regard to the liability of the constructor and other participants in the construction process (eg, architect, authorised site manager, developer, designer). Such individuals can be held liable for hidden defects that arise from their fault, such as defects that may affect the structural elements of the construction (the ten-year term runs from the project’s reception).

The buyer of a construction with hidden defects may file a liability complaint for hidden defects to court within three years from the reception of the project or the date the defect was discovered.

The schedule of the construction project is usually subject to clear milestone and completion dates, which are agreed upon by the parties prior to the beginning of the construction. A common method used to sanction the constructor if the milestone or completion dates are not observed is via delay penalties, usually backed by a guarantee. In this regard, the parties assess in advance, by means of a penalty clause, the extent of the damage suffered as a result of the delay in the execution of the obligation.

Nevertheless, if the delays in the execution of the obligations are serious and substantially affect the works, the termination of the contract is also an option, although this is an undesirable outcome considering the implications that may arise from it.

Additional guarantee clauses for the proper execution of the works are as follows:

  • successive deductions of 5% to 10% of the corresponding value of the invoices issued by the contractor, during the execution of the contract. The amounts charged as a guarantee will usually be refunded to the contractor after the final reception; and
  • letter of bank guarantee representing 5% to 10% of the total value of the works.

According to the Civil Code, in order to secure the payment of the price due for the work, the contractor benefits from a legal mortgage on the works, constituted and preserved in accordance with the law. Without any formality, the mortgage extends to the construction and its accessories, even if they are subsequent to the constitution of the mortgage.

The reception of the works represents the final procedure that must be fulfilled before the construction can be commissioned. This procedure is performed by the Reception Committee (eg, a representative of the Competent Public Authority, a representative of the investor, a representative of the State Inspectorate in Constructions and one to three specialists in the field of constructions), whose purpose, inter alia, is to verify the compliance with the provisions of the building permit, the execution of the construction works in accordance with the contract and the completion of all the construction works.

The construction can be put into use only after completing the reception of the works and the signing of the reception report by all the Reception Committee members.

The sale and purchase of real estate property located in Romania is generally VAT exempt without deduction right, except for new buildings and plots of land that can be built upon, which are generally subject to 19% VAT. Moreover, the right to opt for VAT (19% standard rate) for transactions that are generally VAT exempt may be exercised under certain conditions.

The supplies of real estate, if subject to VAT, fall under the reverse-charge mechanism if both the buyer and the seller are registered for VAT purposes in Romania. In such a case, neither the seller nor the buyer has the obligation to pay VAT to the state budget.

Furthermore, no VAT would be triggered if the real estate is transferred by way of a transfer of a going concern that is outside the scope of VAT. The supply of buildings as part of the social policy, including the land on which they are built, is subject to a reduced 5% VAT rate if certain conditions are met (mainly related to the value of the property and the usable space, the condition that the buyer is not a legal entity, etc).

As a general rule, the mitigation of real estate property transfer tax occurs if a sale, merger or demerger of shares of an entity owning real estate is implemented, rather than a simple sale of real estate. In cross-border share transactions, the provisions of the double tax treaties concluded by Romania with other countries should be observed, since in certain cases the sale of shares of companies whose assets consist mainly of real estate located in Romania may shift the taxation of the sale of shares to Romania.

There is no municipal tax paid on the occupation of business premises. However, subject to limited exceptions, real estate used for paid tourist accommodation attracts a special tax for tourism established by each city council, which is collected from the tourist.

Municipal taxes (property taxes – building tax or land tax) also apply to the ownership of real estate and certain other limited real rights (ie, lease, concession, administration or use of public or private property of the state or of the administrative-territorial units). There are certain exemptions from property tax, but they are generally limited to non-profit, religious organisations, educational institutions, hospitals, governmental institutions, persons with disabilities, etc.

As a general rule, rental income or revenue from the sale of real estate paid to non-residents represents Romanian-source income and is subject to Romanian taxation, based on the same rules as apply for the following:

  • Romanian companies – 16% profit tax applied to the difference between the rental income and the expenses incurred for realising this income, or 16% applied to the sale price minus (i) the expenses for acquiring, constructing or refurbishment, out of which the depreciation value is excluded and (ii) the commissions, taxes and other amounts paid with respect to the sale; and/or
  • individuals – 3% applicable only to amounts that exceed RON450,000 for the sale of real estate, or 10% of the rent price minus 40% automatically deductible expenses for rental income.

These rates are subject to the provisions of any applicable tax treaty.

Moreover, there is no withholding tax for the buyer.

As a general rule, if the owner of the property is a company subject to Romanian corporate income tax, depreciation is allowed (on a straight-line basis) on the acquisition value of the buildings. Plots of land are not eligible for tax depreciation.

Mușat & Asociații

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Law and Practice

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Mușat & Asociații is a leading, full-service Romanian law firm that has been advising leading national and international companies, governmental authorities, financial institutions and investment funds for over 30 years. The firm has 13 partners and more than 100 dedicated lawyers. Musat & Asociatii’s market-leading Real Estate practice has a strong record of advising developers, retailers, investors, financial institutions and funds on the full range of legal services, including the acquisition of land, forestry land, construction and maintenance, permitting aspects, residential, office and commercial projects, mixed-use scheme developments and asset management work. The practice has extensive experience in helping real estate developers navigate the intricacies of local laws and optimise transaction outcomes thorough due diligence and insightful strategic advice. Major retail market leaders turn to Mușat & Asociații for assistance with their various real estate mandates, and the practice’s expertise on transactional and financial briefs is of particular benefit to international consultancies and investment companies.

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