ro fr
universul juridic magazin

Fixing of property boundaries action

As at its publication date, this study represented the first systemic investigation of fixing of property boundaries actions in our legal literature under the former Romanian Civil Code of 1864. Starting from the provisions of art. 584 hereof, according to which any landlord could oblige his/her neighbour to fix the boundaries of the property next to his/her, and the costs incurred for fixing the respective property boundaries were to be paid into two equal parts, as the fixing of property boundaries action was defined as being the material operation consisting in fixing the boundaries between two adjoining areas of land owned by different landlords, usually based upon the ownership. No less,it was however admitted that any other real rights might be exercised over the adjoining lands for which the fixing of property boundaries is performed. Although the text of art. 584 of the former Civil Code was ranged in the matter of easements, namely in the matter of natural easements, it is upheld that in fact, the capacity recognized to any owner of a real right to request to his/her neighbour to mark out the boundaries of the land over which he/she exercises his/her right shall not be an easement, as, in such a situation, there is no lien imposed on a land “for the benefit” of another land, and therefore we are not in the presence of a dominant real estate and of a real estate subject to an easement. This capacity is construed as a mutual to-do-obligation, which is incumbent upon the owner of a real estate, which rather brings it near the real obligations (propter rem) as regards the legal nature.The study shows that the fixing of property boundaries action, considered from the point of view of the person who requests it, respectively any of the landlords of the adjoining real estates, shall be examined as an attribute of a real right, mainly of the ownership right, so that it was suggested that, in the new Civil Code, this action was to be regulated within the general provisions regarding the ownership right, as a reference rule for the other main real estate rights, as well. This suggestion was complied with by the editors of the new Civil Code, which became effective on 1 October 2011, in which art. 561, regulating the obligation to fix the property boundaries, is provided for in Title II – “Private property” – of the Book III – “About Assets” – of the Code, in Chapter I – “General provisions” –, in its first section regarding the content, the extension and the cancellation of the private ownership right.According to the definition and the legal characteristics of fixing of property boundaries action – a real, petitory, real estate and indefeasible action –, its correlations with the other real actions are examined, namely the action for recovery of possession and the possessory actions. It is emphasized that sometimes, in practice, the distinction between fixing of property boundaries action and the action for recovery of possession may be more difficult to achieve and that, in any case, when under the action of fixing of property boundaries it is also requested a certain part of the adjoining land that the defendant owns unrightfully, we encounter two actions, particularly an action for recovery of possession, with its specific legal regime. However, it may be upheld that, in essence, the legal characteristics and the legal regime of fixing of property boundaries action emphasized in this studyare found in the regulation of this action as well, in the new Romanian Civil Code.