Descriere
The article examines the extent to which the absence of a parcel plan may justify the dismissal of real property restitution claim. The present study is based on an analysis of a dispute in which the courts of first instance and of appeal dismissed the statement of claim concerning a real property restitution claim, without examining the merits and without comparing the ownership titles relied upon by the plaintiffs and the defendants.
In the dispute underlying this study, the plaintiffs held a valid and prior title, confirmed by the judicial technical expert report administered in the case, as well as a final court judgment which stood in lieu of an authentic deed of transfer of the respective plot of land.
The absence of a parcel plan cannot be imputed to the plaintiffs, as it falls within the responsibility of the public authorities. The dismissal of a real property restitution claim on the grounds of the absence of a parcel plan amounts to a denial of justice and constitutes a violation of the right to property as protected by the European Convention on Human Rights.
The conclusion reached by this study is that courts must, in all circumstances, examine the merits of the case – particularly the ownership titles and the modes of acquisition of property rights – rather than resorting to a formalistic dismissal of the action on grounds that cannot be attributed to the plaintiffs.
