Some Considerations about the Subrogation in the Rights of the Buyer, the Right Recognized in Tenants Favour in Case of Violation of Pre-emption Right Provided by G.O. n. 40/1999

The settlements adopted in lodgers protection area – whose only purpose was to diminish the social impact upon the category affected by the enforcement of restitutio in integrum principle – have created a serious iniquity on social plan due to the innefficient harmonisation of special law and the basic institutions of civil law and civil procedure. The Governement Ordinance n. 40/1999 has established a right of preemtion in lodger’s favour and the possibility to subrogate himself in buyer position by paying the sale’s price if the owner whom have been restored the real estate ilegally confiscated by the state has been estraged ignoring lodger’s right of preemtion. The same law indicates the means of protection of this right by using the real offer of payement follewed by CEC with the subrogation in the rights of the buyer. The ordinance provisions do not cover the case full practice of selling real estate by tenant housing when right exists only for part of it. Regulated can not exercise the right of first refusal for a part of the building, as there is no legal provision preventing the exercise of this right for the entire property. On the other hand, the express provisions of the Civil Code (Art. 1114-1115) on the actual offer followed by CEC prohibit partial validation of tender offer by stating that real „to be made for the entire amount due”. This apparent discrapancy between the general rules of the Civil Code and the special provisions of Ordinance n. 40/1999 has been interpretated by some courts held that a pre-empting benefit itself is annihilated by the norms of the Civil Code. These discrepancies can shape – to be removed through adoptation of rules by methodological speaking an decisions in interest of low – that in a certain specific situations arising in practice renters can not use in legal means of recovery of the right of first refuzal enstablished by the legislature as a measure protection of their rights.