Waiting in line in the Real Estate Cadaster Office for submitting the application for registration with Real Estate Cadaster should soon go to history! Lines and waiting for your turn at the counter will be replaced by simply going to the Notary public who will be in charge to undertake further actions in the procedure of registration with the cadaster.
By enacting the Law on the procedure of registration in the Real Estate Cadaster and Utilities (“Official Gazette of the Republic of Serbia”, no. 41/2018, 95/2018, 31/2019, and 15/2020 – hereinafter: “Law”) significant changes have been introduced in the procedure of registration in the Real Estate Cadaster.
Unlike so far, when the submissions, evidence, and other acts were filed to the Real Estate Cadaster Office in the procedure of registering with the Real Estate Cadaster in the paper form (hereinafter: “Office”), the Law prescribes an obligatory delivery of the aforementioned files in the form of the electronic document, via electronic counter (hereinafter: “e–counter”). Exceptionally, a party may submit appeals and other legal remedies, as well as the attached evidence in paper form.
What remains unchanged is that the request for registration in the Real Estate Cadaster, on behalf of the party, can be submitted by its legal representative, an authorized representative of the party, as well as by a natural person, legal entity, or entrepreneur, based on the power of attorney. The Law further provides for two ways of initiating the procedure for registration with the Real Estate Cadaster:
- Ex officio (meaning “on its own”)– By the bodies in charge of this initiation under the Law
- Upon request of a party
In the following text, we will present the course of the ex officio registration procedure. For better understanding, we will look at the procedure from the aspect of the three usual phases.
Ex Officio Registration Procedure
The First Phase – Delivery of the Relevant Documents
The rule is that the procedure for registration with the Real Estate Cadaster is initiated by the Office, ex officio. The Office initiates the procedure immediately after it receives the document delivered to it ex officio by bodies tasked with this delivery under the Law. Bodies tasked with the delivery ex officio under the law are bodies that are obliged to deliver the documents which they issue, compose, authenticate or certify to the Office via e–counter:
- Courts
- Notaries Public
- Public bailiffs
- Public administration bodies and other bodies and organizations, through conducting public authorities, issue decisions that represent a ground for registration in the real estate cadaster, deliver executive decisions, and other acts which represent the appropriate ground for registration in the real estate cadaster.
In addition, immediately upon receipt of the document, the Office issues an electronic certification of delivery to the body that delivered the document. Electronic certification is also issued to the party that files the application for registration, immediately after the application is received.
Submitting entities who use the via e – counter, deliver the document to the Office, which is a legal ground for registration of change with the Real Estate Cadaster, as well as other documents provided by the Law. The Law stipulates deadlines in which the submitting entities are obliged to effect delivery to the Office:
- Notary public – 24h as of the moment of creating, certifying, or authenticating Notary public’s document, and of the date of which the decision, that Notary public has issued in entrusted authority, becomes executive (for example, a decision on inheritance), about which it issues a confirmation to the parties;
- Court – 3 working days as of the date of which the decision, which is issued in a case in which it conducted the first-instance procedure, becomes executive;
- Public bailiff – in the period prescribed by the law which regulates execution and security;
- State authority, local authority, and other subjects – 24h as of the date of which the decision, which constitutes a ground for registration, becomes executive.
When it comes to the Notary public, unlike the present practice, when a Notary public inspected the originals of documents, and then put copies of those documents in its file, from now on, the parties will have to hand over the originals to the Notary public. Based on those originals, the Notary creates the electronic document, which it delivers to the Office.
If the delivery of the document conducts Notary public, he is obliged to deliver the adequate tax returns to the Office. Depending on the fact whether the ownership right is based on the real estate sale and purchase agreement, present, or inheritance, the Notary public delivers to the Office the tax return for estimating the tax on the transfer of absolute rights, or the tax return for estimating the tax on the inheritance and present, as well as the tax return for estimating the property tax related to the transfer which is conducted by that document, except if the person obliged to file those tax applications refuses to have those filed by the Notary public. It is important to stress that the Notary public is not authorized to fill in the aforementioned tax applications, but rather to if the party wishes to, fill in tax applications and deliver them to the tax authorities.
You are probably wondering what kind of administrative fees you should expect now when the Notary public undertakes all legal actions for the registration procedure. As for the fees for the Notary public services, the exact amount is still to be determined. That will be done once the scope of work and of work force’s engagement in this form of activities of the Notary public is determined
The Second Phase – Commencement of the Procedure and Due Diligence of the Formal Requirement for the Registration
Right after the delivery is performed by the bodies tasked with it, the second phase of the procedure is started. The Office, without delay, commences with the registration procedure, and the document, based on which the transfer of property on real estate is effected, via e – counter, delivers to the tax authority authorized to estimate the amount of the tax on the transfer of absolute rights, or tax on inheritance and present. In the same manner, the Office also forwards the document to the local authority authorized with estimation, payment, and control of own revenue sources of local government, for the purpose of estimation of tax on property, as well as to the company locally competent for unified payment of communal services. If the Office has received a tax report from a Notary public along with the document, following what we have been talking about in this blog post so far, the Office forwards these to the tax authority or the local authority. The Office then checks if the formal requirements for registration are fulfilled (competence of the Office; is the document, which constitutes a legal ground for registration ex officio, delivered, as well as other documentation provided by law, and similar.).
Additionally, if the court, Notary public, or a public bailiff has delivered the document, the Office does not check whether the document is issued, composed, certified, or authenticated in the scope of competence of these bodies under the law.
Furthermore, if the formal requirements for registration are fulfilled, the Office does not check the legality of change which is being carried out following the document delivered, since the body tasked with delivery was concerned with that in the procedure of issuing, composing, certifying, or authenticating that document, and which is confirmed by the very act of delivery to the Office. The Office issues a decision that affects registration of such a change with the cadaster unless the law prohibits registration in such cases.
The Third Phase – Issuance of the Decision
The Office pays attention to whether the conveyancing of the ownership rights is in accordance with the imperative terms. In case the Office finds that the disposal of real estate in the document which is the ground for registration is contrary to imperative laws, the Office effects registration based on that document in the cadaster. Immediately, the Office notifies the body, which is competent to initiate, ex officio, the appropriate procedure for annulling that document, as well as the public prosecutor, and it registers a note on these notifications in the cadaster.
Per the Law, the Office is obliged to issue the decision in the period of 5 working days as of the day of delivery of the document for registration.
Registration Procedure Upon Party’s Request
Previously we have explained that the rule of initiating registration with the real estate cadaster is ex officio. As always, there is an exception.
As an exception to the rule is possible to initiate this procedure by a party by filing a request via e-counter (unless that is explicitly excluded by the law).
In the request, the party may ask for the decision upon submitted request, to be delivered via registered mail to the desired address or directly on the premises of the Office, in which case the party will receive the transcript of the decision issued in the electronic form. If it does not do so, the decision will be delivered to the party in the form of an electronic document, to the email address which the party specified in its request as its email address, bearing in mind that the request itself was submitted in the electronic form.
Right after the request has been received, the Office without delay starts the registration procedure, and the document based on which the property transfer on real estate is being affected, via e–counter, is forwards to the tax authority and the local authority competent for estimation, payment, and control of source revenues of the local authority, just as in the procedure ex officio.
Following the reception of the request for registration, the Office checks whether formal requirements for registration in the real estate cadaster are satisfied (competence of the Office; whether the request is filed by an authorized person; whether the request contains all the prescribed data, and similar.). That is the similarity with the procedure initiated ex officio.
The main difference between these two procedures, the one initiated ex officio and the one initiated by the party, is the deadline the office in which the Office has to decide upon the request.
The Office rules on the request for registration in 15 days as of the day it received the request. However, in the case of registration of mortgage, registration of the note of hypothecary sale, as well as in the simple administrative matters, this deadline is the same as in the procedure for registration initiated ex officio, and that is 5 working days as of the day of reception of the request.
Appeal
Deadline for Submitting Appeal:
Against the first–instance decision, regardless of whether it has been issued ex officio or on a party’s request, the party has the right to appeal.
The party may submit an appeal to the Republic geodetic office (hereinafter: “Republic office”), which is handed over to the competent Office, in 8 days as of the day of delivery of the first-instance decision.
THE OFFICE’S PROCEDURE CONCERNING THE SUBMITTED APPEAL:
After receiving the appeal, the Office has 7 days to act in one of the following ways:
- Dismiss the appeal– check the formal requirement of the appeal, therefore, the issued decision on the dismissal of the appeal, if the appeal has not been submitted in the prescribed period if the appeal is not allowed if the appeal has not been submitted by an authorized person
- Adopt the appeal, annul the first–instance decision and issue a new decision – if it finds that the appeal is founded.
- Appeal, along with the case files, forward to the Republic office for the further procedure– if it finds that it cannot act in accordance with points 1 or 2 above.
Exceptionally, if adopting the appeal could badly affect the rights and interests of a person in whose favor registration is allowed, or of a person registered in the cadaster on that real estate, the appeal will be delivered for a reply to that person. In that case. The person who is obliged to deliver its reply to the Office in the period of 8 days.
DEADLINE FOR ISSUING A DECISION ON APPEAL:
The Republic Office is obliged to issue its decision on appeal in the period of 60 days as of the day the proper appeal is handed over to the Office.
REPUBLIC OFFICE’S ACTIONS REGARDING THE SUBMITTED APPEAL:
The Republic office may:
- Reject the appeal
- Annul the first–instance decision in whole or in part, and decide on the appeal on its own
- Annul the first–instance decision and return the case to the first–instance body (that is, to the competent Office, which has issued the first–instance decision against which the appeal was submitted) for a new procedure
- Modify the first–instance decision
COURT PROTECTION:
After the second-instance body, Republic Office issues the second-instance decision, there is also a possibility to initiate an administrative dispute. This form of court protection before the Administrative court is also possible to be initiated if the Republic office does not rule on the appeal in the period prescribed by the law.
Transition from the “Old” to “New” System
Relation Between the “Old” to “New” Law:
The procedures initiated on the party’s request filed after the entry into force of the Law on the procedure of registration in the real estate cadaster and lines’ cadaster, and based on which registration is requested founded on the courts’ decisions and decisions of other competent bodies and public authority bodies which have been issued prior to the entry into force of the Law on the procedure of registration in the real estate cadaster and lines’ cadaster will be conducted and finished in accordance with the Law on state diameter and cadaster (“Official Gazette of Republic of Serbia”, no. 72/2009, 18/2010,… and 41/2018 – other law). This will also be the case for private documents, which are not authenticated by Notary public.
The registration based on decisions of courts, other competent bodies and public authority bodies issued after the entry into force of the Law on the procedure of registration in the real estate cadaster and lines’ cadaster will be carried out in accordance with the Law on the procedure of registration in the real estate cadaster and lines’ cadaster. The same is true for the documents composed or certified by Notaries public, or courts, which have composed those documents, or certified them instead of Notaries public.
Bodies Tasked with Delivery Ex Officio: Relation Between the “Old” and “New” Law:
The Law has prescribed the deadlines for all bodies tasked with the delivery ex officio, in which they need to start to deliver the documents ex officio. Notaries public are obliged to start with the delivery of documents which they compose, certify, or authenticate starting from July 1, 2018, as well as of the decisions which they issue and which become executive starting from that date.
The courts have a different deadline. The courts are obliged to start with the delivery of documents they compose, certify, or authenticate instead of Notaries public, starting from January 1, 2020, as well as of the decisions which they issue, and which become executive starting from that date.
Public bailiffs and other bodies tasked with delivery are obliged to deliver decisions, which become executive starting from November 1, 2018.
By the dates written above, registration in the cadaster based on the above-mentioned documents will be performed at a party’s request.
As an exception to the rule of delivering documents via e–counter, all pen & paper lovers may file a registration request in the paper form until December 31, 2020.
