Eviction procedure and enforcement during a state of emergency
The establishment of the state of emergency in Romania has brought significant changes in everyone’s life, affecting multiple levels and implicitly our daily life. Thus, unpleasant situations and uncertainties related to income or job insecurity arise. At such a time, it is essential to know our rights and thus to know that direct enforcement, such as eviction from the home, is not one of the problems at this time.
Even though many of the main issues of interest during this period have been publicized in various forms, some have yet to be presented so frequently, and by default, we do not know our rights. One such topic is enforcement and what happens to it in the current context.
A first regulation on this subject was envisaged in Decree No 195/2020, establishing the state of emergency. Article 42 regulates how court activity will be carried out throughout this period. Paragraph 5 of the same article stipulates how the enforcement will be carried out throughout the state of emergency “the enforcement activity continues only in cases where it is possible to comply with the rules of sanitary discipline established by the decisions of the National Committee on Special Emergency Situations, to protect the rights to life and physical integrity of the participants in the enforcement”.
Consequently, on 23.03.2020, the National Union of Enforcers issued a statement suspending the compulsory eviction procedures during the state of emergency in Romania “In the context of the COVID-19 pandemic, the leadership of the National Union of Enforcers, by decision of the Executive Board of the Union Council, has decided to suspend compulsory evictions during the state of emergency in Romania.”
Thus, this decision is in line with Art. 42 para. 5 of Decree No 195/2020, in compliance with the health discipline rules, imposed. If an eviction order were to be enforced, it would not comply with the rules laid down to protect the participants’ right to life and physical integrity. At the same time, we believe that taking this measure also represents an awareness on the part of the authorities of the financial implications of the crisis generated by the current situation and that this measure will cushion the adverse effects on citizens.
At the same time, in addition to the suspension of evictions, the same communiqué also provides for the suspension of all direct enforcement procedures “In addition to the suspension of evictions, the leadership of the National Union of Bailiffs has decided that bailiffs should suspend all direct enforcement procedures, as well as take other measures to prevent the spread of the new coronavirus, both among citizens and among bailiffs and employees of their offices.”
But what is direct enforcement?
Direct enforcement refers to the same performance to which a specific person, the debtor, has committed himself. It usually refers to an obligation to give a particular good or an obligation to do or not to do something. Under the current rules, direct enforcement can take several forms:
- the compulsory surrender of movable property
- the compulsory surrender of immovable property
- enforcement of obligations to do or not to do
- enforcement of judgments relating to minors.
However, in the current context, this method of enforcement is not possible because of the measure taken by the National Union of Enforcers, which is in line with Article 42 para. 5 of Decree 195/2020.
What can we do if direct enforcement is not possible at the moment?
In this case, indirect enforcement is available to the creditor even if the debtor cannot be forced to perform the obligation in kind. This type of enforcement is also the most commonly used and necessary for situations where direct enforcement is impossible. This type of enforcement is also possible in several forms:
- movable tracing
- property tracing
- the attachment
- tracking real estate income.
Indirect enforcement differs from direct enforcement in that the creditor’s claim against the debtor is realized by seizing all the debtor’s assets or by seizing the money that the debtor is to receive from third parties, up to the amount to be recovered. Therefore, even if the National Union of Enforcement Agents has issued the notice suspending the procedure of enforcement in kind, creditors have the possibility of indirect enforcement, which the executors still carry out.
It is essential to underline that these provisions apply only when a national emergency is in place. However, after the end of the state of emergency, even if a period of financial uncertainty follows, in the absence of other provisions or communications from the National Union of Executioners, any creditor will be entitled to start the procedure of compulsory eviction or direct enforcement.