The novelties brought by law number 287/2009 in the matter of the partition of inheritance

• Author: Ilioara Genoiu
• Position: Lecturer Ph.D. 'Valahia' University of Târgoviste, Faculty of Law and Social-Political Sciences, Law Department
• Pages: 206-211

THE NOVELTIES BROUGHT BY LAW NUMBER 287/2009 IN THE M ATTER OF THE PARTITION

OF INHERITANCE

1

Ilioara Genoiu

Abstract

In the presen t paper we intend to point out the new elements regarding the partition of inherita nce that

were brought by Law 287/2009 concer ning the Civil Code2, in comparison with the Civil Code of 1864. Equa lly,

we intend to consider over their justness a nd opportuneness.

Keywords: par tition in a friendly way, partition by cour t, joint possession, coheirs.

Introduction

The new Civil code r egulates the pa rtition of inheritance in the IVth Book “About inheritance and

liberalities”, the IVth Title “The transmission and the partition of inheritance”, Chapt er IV “The partition of

inheritance and the report”, Section I “General dispositions regarding the partition of inheritance”, art . 1143-

1145. In these legal texts, the nor mative act named before defines the joint possession, t he voluntary pa rtition

and it regulates the possibility of taking certa in preservative measur es regar ding the inherita nce goods. Within

the sa me legal texts, the new Civil Code has inser ted the provision according to which its dispositions that ar e

incident on the par tition of the common property (art . 669-686) are enforcea ble to the partition of inherita nce as

far as they a re not incompatible with them.

1. The notion and the legal regulation of the inheritance partition

According to the provisions of art. 1143 (1) of the new Civil Code “Nobody can be obliged to stay in

joint possession. The heir can request the coming out of joint possession at any time even when there are

conventions and testamentary clauses that provide in a different way”.

Therefore, it results that t he action of coming o ut of joint possession has an imprescriptible character in

the li ght of the new Civil Code too and it can be lodged at any moment. But, regarding the partition, on the

strength of art. 672 of the new Civil Code, there can be drawn up conventions of suspen sion, of which duration

cannot exceed 5 years. Concerning the immovables, the conventions have to be drawn up in an authentic form

and they have to be submitted to the publicity proceedings provided by law.

Analysing t hese legal dispositions, we notice that the new Civil Code utilizes the term of “partition”

instead of “division” – term which can be found within the previous Civil Code. The new Civil Code states as a

novelty aspect – the possibility of maintaining the joint poss ession for a period that cannot exceed 5 years; it also

imposes that the partition adjournment conventions regardi ng the immovables has to be realized in an authentic

form and they have to be submitted to the publicity proceedings. Consequently, the new Civil Code does not

provide anymore the possibility of prolongation the partition adjournment convention, thus it cannot exceed the

period of 5 years.

2. The general basic conditions of the partition

The partition of inheritance has to be made with the observance o f certain fundamental conditions

concerning the persons that can request the partition and the capacity requested by law which is necessary in

order to promote and to participate to the partition of inheritance.

Regarding these conditions, the new Civil Code does not bring any major novelty because it takes over

the principles of the previous Civil Code. Concerni ng the capacity which is necessary in order to r equest and to

participate to the inheritance partition, we can notice that the new Civil Code has replaced the “tutorship

authority” (which was utilized by the Civil Code of 1864) with “the tutorship court”. Thus, the incapable person

and the person with limited capacity of exercise need the representation o f the legal protector, respec tively they

need to be assisted by it and they also need the tutorship court approval.

1 This work was supported by CNCSIS-UEFISCSU, project number PN II-RU, code PD_139/2010, contract number 62/2010.

 Lecturer Ph .D. “Valahia” University of Târgovişte, Faculty of Law and Social -Political Sciences, Law Department, e-mail:

ilioaragenoiu20@yahoo.fr

2 It was republished in “the Official Gazette of Romania”, part I, no. 505, 15 July 2011. The provisions of this law are only enforceable, in

principle, to the testamentary executions that regard the successions which were opened a fter 1 October 2011 which its date of entry into

force. According to the principle of tempus regit actum, the inheritances opened after thi s moment is to be governed by the provisions of the

Civil Code of 1864. But, we mention that, from the interpretation of article 6, ¶ 5 and 6 of the new Civil code it results that the provisions of

this normative act are enforceable to the inheritances which were opened before 1 October, but that are debated after this moment. As a

consequence, the partition act that was drawn up after the date mentioned above, it has a constitutive effect even if the hei r certificate on

which base it was issued it hadn’t the juridical value of a title of property. To be seen in this respect too, The National Union of the Public

Notaries from Romania, Codul civil al României. Îndrumar notarial, volume I, Monitorul Oficial Publishing House, Bucharest, 2011, p. 442.