Vânzarea imobilului fără formă notarială și soarta restituirii
On 12 March 2021, Ion, the owner of a two-room apartment in Chișinău with a cadastral value of 950,000 lei, signed a typed sale-purchase contract with Ana. The contract was signed in the presence of two witnesses but was not authenticated by a notary. Ana paid the full 950,000 lei by bank transfer, received the keys, moved in, paid municipal taxes and spent 80,000 lei on necessary repairs. Ion kept the title documents. In June 2024, after prices rose, Ion refused to appear before the notary and instead sued Ana, asking the court to declare the contract null and to order her eviction. Ana counterclaimed for recognition of ownership or, in the alternative, for restitution of the price and repairs. Ion argues that Ana's restitution claim is time-barred because more than three years have passed since payment. Ana replies that nobody may rely on his own wrong and that the nullity was only invoked in 2024.
1. Was the sale contract validly concluded, and can Ion obtain both annulment and eviction?
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The contract is not valid. Under Moldovan civil law, a sale of immovable property must be authenticated by a notary; the written form before witnesses does not cure the defect. The sanction is absolute nullity, not a mere unenforceability, because the rule protects a fundamental public-interest function: certainty of immovable ownership and registration. Ion's own bad faith does not validate the contract, since absolute nullity may be invoked by any interested person and, in principle, is imprescriptible.
Annulment does not automatically produce eviction. Ana occupies the apartment under a paid contract and has made repairs; the court must first establish the consequences of nullity, including restitution. Eviction would be a separate possessory remedy and would be premature while Ana has a restitutionary counterclaim. The court should declare the contract null, order the parties back to their pre-contractual positions, and only then examine possession.
2. How should the court analyse Ana's claim for restitution of the 950,000 lei and Ion's prescription defence?
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The claim for restitution is distinct from the claim for nullity. Absolute nullity is imprescriptible, but the restitutionary claim is subject to the general three-year extinctive prescription. The key issue is when the term began. Ion argues it ran from payment in 2021; Ana argues it ran only when Ion refused to notarise and invoked nullity in 2024.
The court should identify when Ana knew or should have known that the contract could not produce ownership and that she had a restitutionary claim. Because Ana continued to possess and use the apartment, and because Ion retained the title documents, a strong argument exists that the restitutionary relationship crystallised in 2024. However, if the court finds Ana knew from the outset that no notarial form existed, the claim may be time-barred. Prescription is not applied ex officio; Ion must raise it. Ana's counterclaim should therefore be examined on the merits, with the court stating expressly which starting point it accepts.
3. What is the legal position of Ana's 80,000 lei repairs?
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The repairs must be classified. Necessary expenses preserve the asset and prevent deterioration; useful expenses increase its value; luxurious expenses are not recoverable in the same way. Ana should recover necessary expenses if they were unavoidable and if Ion would otherwise be enriched at her expense. For useful repairs, recovery is usually limited to the increase in value that still exists at the time of restitution.
Ana's good faith matters. She paid the full price, received the keys and acted as an owner, so she is not a mere usurper. But good faith does not convert the null contract into a valid title. The court should order an expert evaluation if the 80,000 lei is disputed, distinguish necessary from useful works, and offset the value of Ana's use of the apartment if Ion claims it. The final restitution should avoid unjust enrichment of either side.