23. Jun 2017
National Assembly of the Republic of Serbia adopted the authentic interpretation of the provision of Article 82 paragraph 1 point 2 of the Law on State Diameter and Cadaster (“Official Gazette of the Republic of Serbia” no. 72/2009, 18/2010, 65/2013, 15/2015 – decision of the CC, 96/2015 and 47/2017 – authentic interpretation) on the Third session of the First regular meeting in 2017 which was held on 15 May 2017. The subject provision defines, inter alia, that the “annotations of a dispute or other proceeding conducted before the court or the public authority, which may result in the change of real estate rights registration” are registered in the Real Estate Cadaster.
The authentic interpretation of the National Assembly elaborates that previously quoted provision should be comprehended in such manner that the dispute annotation in Real Estate Cadaster refers only to litigation proceeding initiated by the lawsuit of previously registered rightholder against currently registered rightholder, regarding the removal of registered rights and in order to establish previous registration state. On the other hand, litigations initiated by the lawsuits of the third parties (persons that were not previously registered as the rightholders on immovable property), may be registered only in following cases:
- Litigation proceedings for the determination of property rights due to adverse possession,
- Litigations conducted by lawsuits initiated by creditors regarding the rebuttal of legal actions taken by the debtors pursuant to Articles 280-285 of the Law of Contract and Torts (Official Gazette of SFRY no. 29/78, 39/85, 45/89 – decision CCY and 57/89, Official Journal of FRY no. 31/93 and “Official Journal of Montenegro no. 1/2003 – Constitutional charter),
- Litigations initiated by the plaintiff as directed by an extra-judicial court or other competent authority.
From our point of view, the major reason for the adoption of this interpretation is uncoherent and inconsistent courts’ practice as well as the practice of the Real Estate Cadaster. On the other hand, it is not rare that requests of dispute annotations are filed by third parties in order to prevent the registered owner of the immovable property to freely dispose with it. In order to prevent the registration of various dispute annotations (which in practice may sometimes lead to the registration of such of disputes which do not cause the change of the registration of real estate rights, and which is at the same time contrary to the sense of Article 82, paragraph 1, point 2 of the aforementioned Law on State Diameter and Cadaster), and to prevent the abuse on behalf of third parties, it was necessary to specify the sense and meaning of the aforementioned provision, which was performed using the subject authentic interpretation.
We would like to draw your attention to the fact that this interpretation is not a novelty in Serbian legislation, considering that current Land Registry Act (“Off. Novelties of Kingdom of Yugoslavia”, no. 146/30, 281/31), which had been in force until the establishment of the Real Estate Cadastral system, foresaw the possibility of annotation registration in certain cases, especially in cases of filling the lawsuit for the establishment of the previous state on the immovable property, respectively in case of filing the mortgage lawsuit. However, such limitations for registration of dispute annotation were not effective in practice, therefore third parties continued with the abuse of the effects of annotation registration in the Real Estate Cadaster.
According to the aforementioned, we are of the opinion that the purpose of subject authentic interpretation is the reduction of the possibilities for the abuse of the institute which regulates the registration of dispute annotation on the immovable property of legal owners as well as specifying the types of disputes which cannot be annotated in the Real Estate Cadaster.