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Legal changes in case of sale of agricultural land

In the Official Gazette n. 741/14.08.2020 was published the Law n. 175 of 14 August 2020 for the amendment and completion of the Law n. 17/2014 on certain measures regulating the sale-purchase of agricultural land located outside the built-up areas, which will enter into force 60 days after the date of publication.

The law introduces important changes to the conditions that buyers of agricultural land are required to meet, with the aim of protecting agricultural land and avoiding any speculative transactions, but also makes the sale procedure more difficult, namely:

1. New categories of preemptors are introduced and the conditions to be fulfilled in order to exercise the right of pre-emption are modified:

(A) 1st degree preemptors: co-owners, first-degree relatives, spouses, relatives and in-laws up to and including the third degree;
(B) 2nd degree preemptors: owners of agricultural investments for trees, vines, hops, exclusively private irrigation and/or tenants. Where agricultural investment in trees, vines, hops and irrigation is located on land sold, priority shall be given to the purchase of such land;
(C) 3rd degree preemptors: land owners and/or tenants of agricultural land adjacent to the land for sale.

In the case of neighboring owners, the neighbor who has the common border at the largest side of the land offered for sale has the priority for sale.

In the case of tenants, individuals or legal persons, in order to exercise their right of pre-emption they must fulfill both of the following conditions:

(i) they have a registered lease at least one year before the offer to sell is made;
(ii) tenants, individuals, associations of natural persons of the heirs, legal persons and associations controlling the shareholder of such persons, must demonstrate that the residence/residence in the territory of Romania is effectively established for a period of five years before the registration of the sale offer.
(D) 4th grade preemptors: young farmers (up to 40 years of age) which give priority to farmers engaged in farming and having their domicile/residence in the national territory for a period of at least one year before the registration of the offer to sell agricultural land;
(E) 5th grade preemptors: the Academy of Agricultural and Forestry Sciences "Gheorghe Ionescu-Sisesti" and the research and development units in the fields of agriculture, forestry and food industry, organised and regulated by Law 45/2009, as well as agricultural education institutions, for the purchase of agricultural land located in large quantities for the purpose of agricultural research in the vicinity of plots existing in their heritage;
(F) 6th grade preemptors: individuals with domicile/residence located in the territorial administrative units in which the land is situated or in the adjoining administrative units;
(G) 7th grade preemptors: The Romanian State through the State Domain Agency.

2. New conditions shall be established for the sale of land to persons other than right-holders who do not indicate their intention to purchase agricultural land, which shall have priority over pre-existing owners, if they indicate their intention to purchase:

(i) the natural persons must, for a minimum period of five years before the registration of the offer to sell, meet the following cumulative conditions:

(i) must be domiciled/resident in Romania;
(ii) must be engaged in agricultural activities in Romania;
(iii) they must be registered by the Romanian tax authorities;

(ii) the legal persons must, for a minimum period of five years before the registration of the offer to sell, meet the following cumulative conditions:

(i) they must have their registered office and/or secondary establishment situated in the territory of Romania;
(ii) must be engaged in agricultural activities in the territory of Romania;
(iii) of the total income of the previous five tax years, at least 75 % shall consist of income from agricultural activities;
(iv) the shareholder/controlling shareholder of the company; or if the control is held by another legal person, the shareholder/controlling member of the company must be domiciled in Romania for a minimum period of five years;

Natural or legal persons meeting the above conditions may submit to the City Hall a file containing the documents proving that the legal conditions have been fulfilled within 30 days of the expiry of the period within which the prefempiers were entitled to exercise their right of pre-emption.

If the above persons are not eligible for the purchase of agricultural land located outside the country, the sale of such land may be made to any natural or legal person.

3. The deadline for the display of the offer of sale at the Municipality, that is to say within which the right of prior access can be exercised, is 45 working days. The deadline for the presentation of the offer is 45 working days.

4. Additional taxation will be introduces in the case of disposal by sale of agricultural land located outside the built-up areas, before eight years after the date of purchase, subject to the payment of 80 % tax on the amount representing the difference between the selling price and the purchase price, on the basis of the notary table for the relevant period and in the case of a direct or indirect transfer before the end of the eight years following the purchase, control packages of cash-based agricultural land owners representing more than 25 % of their assets, the seller is required to pay a tax equal to 80 % of the difference in value of the land in question calculated on the basis of the notaries grid between the time of the acquisition of the land and the transfer of the control package.

5. A single National Register for the circulation and use of extra-judicial agricultural land is established, which is an electronic system based on data and information provided by local authorities and the National Agency for Cadastral and Real Estate Advertising;

6. The transfer by sale of agricultural land located outside the built-up areas without the right of pre-emption is sanctioned for absolute nullity; unlike the current provision in which the transfer is subject to relative invalidity and can only be invoked by the person proving an injury within the general limitation period of 3 years

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