LAV Z. DIMOVIĆ
A property’s legal position cannot always be established from the cadastre alone. Registered ownership may be accompanied by unresolved inheritance issues, a spouse’s rights, earlier dispositions, encumbrances or documents that do not correspond to the registered position.
Property law covers ownership and other rights in rem, real estate transactions, contractual relationships and the protection of assets through court and administrative proceedings.
Proceedings before the Republic Geodetic Authority and electronic applications through its eŠalter system form a distinct part of this practice area.
Purchases and other real estate transactions
When buying an apartment, house, land or commercial premises, the review should establish not only the seller’s identity, but also the legal basis on which the seller acquired the property, the cadastral records, encumbrances and restrictions on disposal.
A legal review is particularly important where the property is not fully registered, annotations appear in the register or the actual position differs from the cadastral particulars.
Preparing a preliminary agreement and the final contract involves regulating the purchase price, earnest money, payment conditions, handover of possession, liability for defects in title and the documentation required to register ownership.
Where the purchase is financed by a housing loan, the contractual documentation must also be aligned with the bank’s requirements, including the conditions for creating a mortgage and releasing the loan funds.
Marital property, co-ownership and division of assets
Registration of a property in one person’s name does not always mean that the person may dispose of it alone.
Where a property was acquired during marriage, it is necessary to examine its status under marital property rules, the basis of acquisition and the other spouse’s rights.
Specific issues arise when jointly acquired property is divided by agreement, upon divorce, when determining ownership shares and when disposing of property acquired or extended during the marital union.
Co-owners may need to regulate the use of a property, arrange its division or initiate appropriate court proceedings.
Inheritance and lifetime maintenance agreements
Property issues are often directly connected with probate proceedings and dispositions made during a person’s lifetime.
A lifetime maintenance agreement, a gift agreement, a lifetime assignment and distribution of assets, and a will have different legal effects.
Before entering into such arrangements, it is necessary to examine ownership of the assets, a spouse’s rights, the required legal form and the implications for future inheritance relationships.
For a lifetime maintenance agreement, particular attention is given to the actual content of the maintenance obligations, the recipient’s capacity to understand the transaction and the circumstances in which the agreement may be challenged.
Cadastral proceedings and the eŠalter system
Digitisation of the cadastre has changed how applications are submitted and how applicants communicate with real estate cadastre offices.
The eŠalter electronic filing system allows authorised professional users, including attorneys who meet the access requirements, to submit applications electronically and monitor their progress.
Depending on the legal basis and the type of procedure, an application may concern registration of ownership, discharge of a mortgage, changes to certain particulars, correction of errors or other registration steps permitted by law.
Provisional registrations, the deadlines for justifying them and annotations that may affect the disposal of property require particular attention.
A correctly submitted electronic application cannot make up for the absence of a valid legal basis for registration. Where ownership itself is disputed, it is necessary to determine whether the problem can be resolved in cadastral proceedings or requires prior court proceedings.
Protecting rights and resolving property disputes
Where the parties cannot regulate their relationship by agreement, property rights may be protected through appropriate claims and other legal remedies.
Matters may include establishing ownership, protecting possession, division of assets, performance of contractual obligations, setting aside transactions or establishing their nullity, and other disputes concerning rights over real estate.
Selecting the appropriate procedure depends on distinguishing a registration defect from a contractual dispute or a dispute over the underlying property right.