Draft of the Law on procedures in Real Estate Cadastre entry and lines entry: Vojvodina’s Chamber of Commerce has sent objections concerning the draft

Although the nature of private and legal relations is most in line with the principle of disposition, the legislator prescribed the obligation of entry within 30 days from the date of the change. The principle of officiality is introduced as justified by the need to speed up the procedure and to provide greater legal protection to citizens. In the overall idea, the legislator ignored the fact that the provision of legal assistance is done by a lawyer who is the only one in addition to the local government, authorized to do so, pursuant to Art. 67 of the Constitution of the Republic of Serbia (“Official Gazette of the Republic of Serbia”, No. 98/2006). From the scope of the lawyer’s job, registration is entrusted to holders of public authority. Attorneys are strongly opposed to this transfer of activities under the legal security plaque because the provision of legal assistance is paramount to any lawyer’s office.

In regards to the principal of the publicity of this information, we place a remark on the conditionality of the public access to the information in the same article in which it is proclaimed. If the cadastre data is public, in that case, the legislator may prescribe certain instances where the public is excluded or has limited access to the data with an explanation of why such a restriction is necessary.

Article 15: Regarding the records, the Chamber of Advocates of Vojvodina has an objection to the entry of a record of the dispute if it is limited to the types of disputes referred to in paragraph 2 of the same article. Although we know the authentic interpretation of the RS Assembly, we believe that all types of disputes concerning real estate must be recorded. In paragraph 2, the legislator says that it is permissible to record “with the lawsuit filed by a previously registered holder of the right to the immovable property against the currently registered right holder, in order to remove previously recorded transfer of rights and establish the previous state of records”. This type of dispute, as suggested by the legislator, is the definition of a sweeping lawsuit. The paradox is that in the Draft itself, as well as in positive regulations, there is no sweeping lawsuit. We suggest that the sweeping lawsuit be standardized because if this Draft is aimed to be a procedural regulation, this lawsuit must find its place in the provisions.

It is very important that the mentioned records include the recording of the existence of a contract of any kind, which may result in a change in the registration of the right to immovable property. Here we cite an example we have presented at a public hearing, which is the Agreement on the Divestiture of Property between Spouses. If one of the spouses is entered as a titular and the immovable property is acquired during the marriage, there is a legal presumption that this property is a joint property. If a spouse concludes a divorce agreement, that immovable property rights may go to any of the spouses.

Suppose it should belong to a spouse already registered as a titular – a change is not necessary, but the fact that a contract of Agreement on the Divestiture of Property between Spouses exists it should be recorded because from that moment it represents the exclusive property of that spouse. We do not have to talk about the consequences of not having this record. The situation is the same with other contracts and may have similar consequences. We believe that the Office’s experts can assess which are the contracts that can or must be recorded.

Article 16: The Chamber of Advocates of Vojvodina, in principle, remarks on the two-stage work of the cadastre which exists within the same body. In the first instance, the inner unit of the Institute makes the decisions, and in the second instance the Institute as a whole. Due to the reasons related to impartiality and objectivity as well as the prevention of outside influence we are forced to make this remark. Considering that RGZ is a separate administrative body, that is, a part of the state administration itself, and not a judicial authority, further strengthens our remark.

Article 22: The legislator obligates notaries“by ex officio,to notify the Office by e-mail via the e-counter in order to be recorded into the cadastre with any documents that they produce, compile, confirm or authenticate” directly lowers the scope of the lawyers’ obligation, which is the provision legal aid, and delegates it to the activity of public notaries. We oppose this provision.

Article 23: This article is based on article 22 and refers to the obligation of notaries to provide, within 24 hours, the compilation, verification or authentication of notary public documents. At this point, we note that the validated document (solemnized document) is a private document. Law on Obligations (“Official Gazette of SFRY”, No. 29/78, 39/85, 45/89 – Decision USJ and 57/89, “Official Gazette of FRY”, No. 31/93 and “Official Gazette of SFRY” SCG “, No. 1/2003 – Constitutional Charter) provides for the principle of disposition when concluding a contract. The Law on Real Estate Transfer (“Official Gazette of the Republic of Serbia”, Nos. 93/2014, 121/2014 and 6/2015) in Article 4 clearly determines in which form the contracts that turn over real estate are to be concluded and this is a publicly-approved document. The legislator changes the nature of the private documents themselves by incorporating private documents into an official regime.

Art. 25 paragraph 3 item 3: This article provides that the request may be accompanied by an authorization if it is submitted by a proxy. At this point, it should state “lawyer”, because any person who takes the role of a proxy as if someone who can provide legal assistance is committing a crime since they do not possess a license to practice law. We believe that the legislator has this knowledge and that this provision will be changed.

Art. 27. paragraph 1 point 4: As in Article 25, it is stated that a lawyer or entrepreneur, or a person registered in the registry of intermediaries, may submit a request via an e-counter by request. Any provision of legal assistance must be clearly separated from possible submission of technical documents. It is necessary to clearly state what the lawyers are doing and what other people can do.

Art. 28: In the first paragraph, delete “once”.

Art. 52: We support the proposal the legislator makes not to limit or fix the deadline for the correction of errors in maintaining the cadastre of real estate, considering there are no late entries, or if there is consent given by the person who recorded his real right after the incorrect record.

Art. 54: This article introduces another authorization for public notaries, which is the issuance of real estate lists. If the intention is to increase legal security and to facilitate easier and faster access to the data of the real estate cadastre, the Chamber of Advocates of Vojvodina proposes that the same authority is granted to the lawyers and advocates. The question arises is: Does the state want legal security only and exclusively if it is provided by public notaries?

Art. 59: This article also envisages efficiency on the RGZ line and public notaries. The advocacy, as in the aforementioned article, proposes that lawyers contact the Office. In the event of such a connection, the lawyer would accept the obligation to submit to the OFfice all the legal affairs that the lawyers create within the scope of their activities of providing legal assistance.

Finally, we would like to mention that in the Law on Lawyers (“Official Gazette of the Republic of Serbia” No. 31/2011 and 24/2012 – the decision of the US) Article 36 stipulates that state bodies are obliged to provide lawyers with information and data.

Source: Vebsajt Advokatske komore Vojvodine, 02.08.2017.