The claims representing the value of improvements to the apartments were found by the Court of Appeal unfounded regardless if they were based on the provisions of art. 48 of Law no. 10/2001, as in force on 16 April 2008, when civil judgment no. 630 of 2 May 2007 (now art. 49) became final, or on the legal provisions governing the common law liability for eviction, according to the theory developed by the court of appeal in civil decision no. 289 of 9 July 2012.
This was because it hasn’t been proven the evidence of any improvement works in the sense of art. 48.1 of the Implementing Rules of the Law no. 10/2001: “Necessary and useful improvements means those facilities built or brought to the housing unit or common areas, through which it was increased the value of the housing unit and were borne solely by the tenant (insertion or change of the installation of water, gas, sewerage, electricity, heating, new works: parquet, ceramic or tile, windows, doors and others like that). Evidence of these improvements is done with supporting documents, through technical expertise, in compliance with the provisions of paragraph (5) of art. 48 of the law“.
The expert findings, which show that “the observations on the technical condition of the buildings were made from the street, not being possible the access inside the enclosure”, were founded, also at the first expertise and also during the second one, on a extrajudicial technical expertise report which has not been submitted to the file and on the statements of the plaintiffs, the values set being purely hypothetical.
In appeal, the appellants found that the solution given in the decision of cassation, mandatory for the first court, was not respected. According to article 49 of Law no. 10/2001 “tenants are entitled to compensation for the building improvements necessary and useful”, and according to the provisions of art. 1336 of the old Civil Code., evicted buyer may claim from the seller the reimbursement price and the building improvements between closing time of the contract and date of the eviction. The appellants considered that the first court wrongfully considered that they did not proved the improvements to the apartments.
The High Court of Cassation and Justice held that the appeal against the solutions above – mentioned is unfounded.
The claims representing the value of improvements to the apartments were analyzed in relation to the provisions of art. 49 of Law no. 10/2001 and the provisions of Art. 1336 Civil Code, but in connection to the evidence in question it was held that it was not made the evidence of improvement works in the sense of article 48.1 of the Methodological Norms, respectively of their enhance value under the conditions imposed by the common law.
Law no. 10/2001 and Methodological Norms define the improvement works which, being carried out by the tenant, entitle the tenant to reimbursement. But the evidence of these improvements should always be made with supporting documents, the value of the works being established through technical expertise.
However, given that the parties have not submitted written evidence of the alleged work performed, the court has legally removed the conclusions of the expert report which had as reference the data provided by the parties and the affidavit of the reality of these works.
The fact that the opposing party did not oppose to the expertise nor made any objections, cannot lead to a validation of such expertise that has considered other means of proof than as required by law.
Even in common law, regarding the guarantee for eviction, the evidence of the valuable gain, as legal fact, must comply with the conditions imposed by the provisions of art. 1169 Civil Code, not being sufficient to indicate the legal facts and to give an affidavit on their reality.
Legally, the appeal court found that, in connection to the fact that the appellants did not requested to complete de evidence provided to the first court, or to administrate new ones, it cannot be hold another status quo on the existence of improvements works or enhance value.