Contractual Transfer of Ownership in Immovable Property

Table Of Contents

• Cover
• Title
• Copyright
• About the author
• About the book
• This eBook can be cited
• Acknowledgements
• Contents
• Abbreviations
• Part I: Introduction
• A. Introduction
• B. Research aims and structure
• C. Looking for similarities and differences
• D. English version of the laws
• Part II: History, Principles and Features of Property Law Related to Contractual Transfer of Immovables
• A. General introduction
• B. A Historical Perspective on Civil Law Codification
• I. A short historical background
• 1. Period of time until 1974
• 2. Period of time from 1974 to 1989
• 2.1. A short history of LBPR
• 2.2. A short history of LOR
• 3. Period of time from 1989 to 1999
• 4. Period of time from 1999 to 2008
• 5. Period of time from 2008 to present
• II. The start of Civil law codification
• C. Basic Concepts And Principles Under Kosovo Property Law as a Prerequisite for Contractual Transfer of Immovables
• I. General overview
• II. Basic information on Kosovo property law
• 1. Legal base and structure
• 2. Current LPORR: its history and function
• III. Characteristics of rights in rem contrary to rights in personam: Ownership vs contract
• IV. The principle of numerus clausus
• V. Ownership under Kosovo law
• 1. Notion of ownership
• 2. Ownership in comparative law
• 3. Characteristics of ownership
• 4. Types of ownership
• 4.1. Individual ownership of immovables
• 4.2. Co-ownership of immovables
• 4.3. Joint ownership of immovables
• III. Protection of ownership
• 1. Protection under law of property
• 1.1. Rei Vindicatio
• 1.2. Actio Negatoria
• 2. Protection under law of obligations
• 2.1. Tort law
• 2.2. Unjustified Enrichment
• 3. Protection under administrative law and civil procedure
• V. The significant distinction between movables and immovables
• 1. The concept of things under Kosovo property law: The influence of comparative law
• 2. Concept of immovables
• 3. Role of the distinction between movables and immovables
• 3.1. Determination of territorial competence
• 3.2. Acquisition of ownership
• 3.3. Prescription
• 3.4. Creation of pledge and mortgage
• 4. Types of immovables under Kosovo law
• VI. Superficies solo cedit principle
• VII. Transferability and non-transferability of immovables
• 1. Transferability of immovables
• 2. Non-transferability of immovables
• VIII. Nemo plus iuris principle under Kosovo law
• D. Summary
• Part III: Contractual Transfer of Immovables Under Kosovo Law: Influence of Law of Contract and its Interaction with other Branches of Private Law
• A. General introduction
• B. An Introductory Perspective to the Kosovo Law of Contract Relevant to the Transfer of Ownership of Immovables
• I. General overview
• II. Information on the legal base: Perspective from LOR of 1978 towards civil law codification
• III. General and Special Law of Obligations: Its role as a general part of civil law
• IV. Sources of the law of obligations: Their interaction in transfer of immovables
• V. Concept of a non-separate of law of obligations: A difference from German law
• VI. Mandatory and non-mandatory rules: The application and position of the party autonomy
• VII. Influence of ex-Yugoslavian LOR: Kosovo based on the Slovenian model
• VIII. Movables and immovables share the same contract law rules
• IX. Concept of contract
• 1. General overview
• 2. LOR provides no definition of the contract
• 3. The comparative perspective: Which solution should be part of the Kosovo Civil Code
• X. Contracts that transfer the immovables and their causal nature
• XI. Notarial form of the contract
• XII. Formation of contracts for the transfer of immovables: A difference with regard to the contracts for movables
• XIII. Essential elements of a contract
• XIV. Time and place of the contract: The lack of a proper approach by LOR
• XV. Pre-contract as a mechanism of the contract: A perspective of an approach by law and practice
• 1. Definition of the pre-contract
• 2. Form and content of the pre-contract
• 3. Effect of the pre-contract: Timing and refusal to conclude the main contract
• XVI. Language of the notarial contract
• XVII. Conclusion of the contract through representation
• XVIII. The interpretation of a contract
• XIX. Termination of contract
• C. Contractual Transfer System of Immovables in Kosovo
• I. General overview
• II. The most important dividing line: Derivative and original acquisition under Kosovo law
• III. The same transfer rules for all derivative titles
• IV. Contractual transfer of movables and immovables
• 1. Basic idea of contractual transfer
• 2. Contractual transfer qualification
• 3. Contractual transfer of movables
• 4. The power of the parties to design the contractual transfer of immovables
• 5. Contractual transfer of immovables under LPORR
• 5.1. A short historical overview:The position of the LBPR
• 5.2. Requirements for the acquisition of ownership under Article 36 LPORR
• 5.3. Article 36 LPORR and its relation with causal and abstract systems
• 5.3.1. The position of the local legal doctrine
• 5.3.2. Author’s observation on Article 36 LPORR: Kosovo law provides a causal system
• V. A short introduction to regional contractual transfer systems of immovables
• VI. To choose causal or abstract system: A proposal for Kosovo Civil Code
• 1. Abstract system would solve some problems in Kosovo
• 2. Causal system reflects the causa of the contractual parties
• 3. The animus theory of Lars van Vliet
• 3.1. The content of the animus theory
• 3.2. Animus theory and its report with the causal and abstract system
• VII. Unitary concept of transfer
• 1. What is meant by unitary concept?
• 2. Field of application
• 3. Component parts and accessories of the immovables
• VIII. Transfer of co-ownership
• IX. Transfer of joint ownership
• X. Transfer of ownership together with real rights
• XI. The impact of the possession in contractual transfer
• 1. Overview
• 2. Possession under LPORR
• 3. Transfer of possession is not required for the transfer of ownership
• XII. No single provision on transfer of title under EU law
• XIII. Kosovo Private International Law: No freedom of choice of law on transfer of immovables
• XIV. Loss of ownership of immovables
• XV. Acquisition of ownership without a valid obligation: How to solve the cases of informal transactions?
• 1. Explanatory overview
• 2. The proper solution: Acquisition by prescription
• 3. The role of the notarial practice
• XVI. Good faith acquisition of ownership in immovables
• XVII. Interaction of property law and contract law with other fields of private/civil law in transfer of immovables
• 1. Interaction with notarial law
• 2. Interaction with family law
• 3. Interaction with inheritance law
• 4. Interaction with tort law
• 5. Interaction with insolvency law
• 6. Interaction with civil procedure
• D. Validity and Invalidity of Contracts that Transfer the Ownership of the Immovables
• I. General overview
• II. Validity of the contract: Interaction of property law and law of obligations
• 1. The approach of the legal doctrine
• 2. Full application of nemo plus iuris
• 3. Identification of notary, parties and object
• 4. Valid causa
• 5. Capacity to contract
• 5.1. No difference for the capacity to contract of natural and legal persons
• 5.2. Position of LOR
• 5.3. Additional rules determining the capacity to contract
• 5.4. Required capacity for the conclusion of the contract
• 6. Notarial form of the contract
• III. Invalidity of the contract
• 1. Distinction of invalidity: Some terminological aspects
• 2. Same rules for nullity of all contracts: No differences with regard to movables and immovables
• 3. Legal acts that determine the nullity
• 4. Absolute or relative nullity? Characteristics of this distinction
• 5. Grounds for absolute nullity
• 5.1. LOR perspective
• 5.2. LON perspective
• 6. Grounds for relative nullity
• 7. Differences and legal consequences of nullity: Application of different rules of private law
• 7.1. Relative nullity produces same effects as absolute nullity: Author’s arguments contrast the local legal doctrine
• 7.2. A concise view of the procedural aspect
• 7.3. Same effects of material law
• 8. Competent authority to decide for nullity
• 9. Interaction of law of obligations and law of property in legal consequences of nullity
• 10. The effects of contracts with absolute or relative nullity: A common analysis with examples
• 10.1. Application of criminal law and civil procedure: Their interaction in establishing nullity
• 10.2. Legal effects of the single contract: Contract between A and B
• 10.3. Legal effects of the double contract: A concluded contract between B and C
• 10.4. Effects of contract in a chain
• 10.4.1. Application of property law
• 10.4.2. Application of the law of obligations
• 10.4.3. Application of the LON and the liability of the notary
• 11. Declaration of nullity by the court after registration: Legal effects between contractual parties
• 12. Nullity and insolvency law
• 12.1. Transactions before bankruptcy
• 12.2. Transactions after bankruptcy
• E. Contracts with Legal and Material Defects and their Legal Consequences on Transfer of Ownership of Immovables
• I. General introduction
• II. The difference between invalidity and defects
• III. Unitary approach of the defects by LOR: No difference for movables and immovables
• IV. Fields of application: The position of LOR on contracts with and without compensation
• V. Legal defects
• 1. Concept of legal defects: Interaction of LOR and LPORR
• 2. Role of the notary to avoid legal defects
• 3. Can the parties design the exclusion or limitation of the liability for legal defects?
• 4. Examples of legal defects: Interaction of law of obligations and other civil law branches
• 4.1. Transfer of immovables without permission of the co-owner
• 4.2. Transfer of immovables in which the pre-emption right exists
• 4.3. Transfer of immovables in which a mortgage is created
• 4.4. Transfer of immovables in which a servitude exists
• 4.5. Transfer of immovables under temporary insurance measure
• 4.6. Transfer of immovables regarding the property of another person
• 4.7. Transfer of immovables restricted by the rules of inheritance law
• 4.8. Transfer of rented immovables
• 5. Remedies for legal defects
• 6. Time-limit regarding legal defects
• VI. Material defects: Cases of (non) liability
• 1. Existence of material defects
• 2. Inspection of immovable property: Visible and hidden defects
• 3. Contractual limitation or exclusion of the liability for material defects
• 4. The rights of the buyer as a result of material defects: The legal hierarchy of remedies
• 5. Time-limit for requesting material defects
• F. Summary
• Part IV: Contracts that Transfer Immovables
• A. Introductory remarks
• B. Transfer Based on Contract for Sale
• I. General introduction
• II. Historical features
• III. Unitary type of regulation: No difference for the sale of movables and immovables
• IV. Legal structure
• V. Definition of the contract for sale
• VI. Effects of the contract for sale
• 1. Parties of the contract for sale
• 2. Obligations of the seller
• 2.1. Obligation to deliver the immovable property
• 2.1.1. Preliminary observations
• 2.1.2. The delivery is required for the acquisition of ownership?
• 2.1.3. Delivery is important regarding the passing of risk
• 2.1.4. Modes of delivery: Relevance to Kosovo causal system
• 2.1.5. Time and place of the delivery
• 2.1.6. Remedies against the non-delivery
• 2.2. Obligation of the seller to transfer ownership
• 2.2.1. Modalities of the obligation to transfer the ownership
• 2.2.2. Res commercium and res extra commerciuam
• 3. Obligations of the buyer
• 3.1. Payment of the purchase price
• 3.1.1. LOR approach
• 3.1.2. The role of the payment in acquisition of ownership
• 3.1.3. The price regarding money
• 3.1.4. Pretium certum, verum and iustum
• 3.2. Takeover of the immovable property
• VII. Special cases of contract for sale
• 1. The sale with the pre-emption right
• 1.1. Notion
• 1.2. Requirement of registration in the register
• 1.3. Notification, duration and transferability
• 1.4. Consequences for disrespecting the pre-emption right: The position of the third parties
• 2. Sale for the actual and future immovables
• 3. Sale of the immovable property destroyed before contracting
• 4. Sale of privatised immovables
• 5. Sale of co-ownership
• 6. Sale of joint ownership
• 7. Sale of immovables to foreigners
• 7.1. Current regulation
• 7.2. Development under DPRFC
• 7.2.1. The position of foreigners under Draft-Law on Property Rights of Foreign Citizens
• 7.2.2. The core distinction between movables and immovables
• 7.2.3. Different rules for EU and Non-EU persons
• 7.2.4. Limitations for foreigners
• 7.2.5. DPRFC relationship with other laws
• 8. Sale with power of attorney
• 9. Sale in choice of law
• 10. Double sale and protection of third parties
• C. Transfer Based on Contract for Exchange
• I. General introduction
• II. Definition of exchange
• III. Both parties have the role of the seller
• IV. What can be exchanged?
• V. Problem with territorial competence
• VI. Exchange of public and private immovables
• D. Transfer Based on Contract for Donation
• I. General introduction
• II. Notion of donation
• III. Donation in case of death
• IV. Specifics on capacity to contract
• V. A distinction between donation, testament and sale
• VI. Legal effects
• 1. Donor’s rights and obligations
• 2. Donee’s rights and obligations
• VII. Revocation of donation contract
• 1. Revocation due to poverty of the donor
• 2. Revocation due to deep ingratitude by the donee
• 3. Revocation due to donor’s children who were born after
• 4. Form of the revocation
• 5. Consequences of revocation
• 6. Time-limit of revocation
• E. Transfer Based on Contract for Delivery
• I. General introduction
• II. The legal regime and social significance
• III. Definition of contract for the delivery
• IV. Legal effects and characteristics: Acquisition of ownership inter vivos or mortis causa?
• V. Similarities and differences with other contracts
• VI. How is the property divided?
• VII. Conditions for the validity
• 1. Consent of the descendants
• 2. Form of the contract
• 3. Position of the delivered property
• VIII. Right of deliverer’s spouse
• IX. Revocation of delivery
• 1. Grounds for revocation
• 2. Form of the revocation
• 3. Legal consequences of revocation
• F. Transfer Based on Contract For Lifelong Maintenance
• I. General introduction
• II. The social significance
• III. The legal context
• IV. Notion
• 1. Position of the immovable property
• 2. Current or future immovables
• 3. Contractual parties
• 3.1. Who can the contractual parties be?
• 3.2. Attributes of the parties
• V. Legal nature, delimitation with other contracts and characteristics
• VI. Transfer modalities: Mortis causa acquisition of ownership
• VII. Termination of the contract
• 1. Termination based on Article 564 LOR
• 2. Termination based on Article 565 LOR
• 3. Termination based on Article 566 LOR
• 4. Form and consequences of the termination
• VIII. Liability for debts of the maintained party
• G. Transfer Based on Contract for Joint Investment
• I. General introduction
• II. Why this contract?
• III. Legal nature and similarities with other contracts
• IV. Legal nature and relationship with other contracts
• V. Some effects and procedural aspects
• 1. Application for the permission of construction
• 2. Transfer of ownership
• 3. Other effects
• H. Summary
• Part V: Cadastral System and Immovable Property Rights Registered in the Function of Contractual Transfer of Immovables
• A. General Introduction
• B. Role of the Cadaster in Transfer of Immovables an Approach From Law and Practice Perspective
• I. General overview
• II. A short historical introduction: Cadastre from Yugoslavian period until now
• 1. Cadastre under Yugoslavia law: The non-establishment of the land registers in Kosovo
• 2. Cadastre after independence of Kosovo
• III. Interaction between cadastre and register
• IV. Organisation of the cadastre
• 1. Kosovo Cadastral Agency
• 2. Municipal Cadastral Offices
• V. Content of the cadastre
• VI. The background of challenges
• 1. Recovery of cadastral books from Serbian authorities
• 2. Access of notaries to the cadastre
• 3. New measurements on land
• 4. Increase of human capacity
• VII. Review of the contract by the cadastre: Authorisations of the cadastre
• C. Register for Immovable Property Rights as a Fundamental Instrument in the Transfer of Immovable Property
• I. General overview
• II. Establishment of the register: A short overview on the LEIPRR
• III. A sub-law to implement LEIPRR
• IV. Requirements for the registration of contract
• V. Systems of registration
• VI. Who keeps the register? Difference from Austrian and German law
• VII. What is registered in the register?
• VIII. Parts of the register
• IX. Maintenance of the register: Manual or electronic form?
• X. Basic principles of the registration
• 1. Principle of the numerus clausus: Its full application in the register
• 2. Principle of lex rei sitae: No exceptions from this rule
• 3. Principle of superficies solo cedit: A sole exception
• 4. Principle of constitutive character of the registration
• 5. Principle of party initiative: Its application and exceptions
• 6. Lack of authorisation principle: Application of the law of obligations
• 7. Principle of publicity
• 8. Principle of legality on registration of contract
• 9. Principle of priority on registration of the contract
• XI. Registration procedure of the contract
• 1. Same rules for individual ownership and co-ownership
• 2. Same rules for the registration of all contracts
• 3. The cadastre requirement for the payment of the full purchase price: Breach of the party autonomy
• 4. Procedure of registration
• 4.1. The request on registration
• 4.2. The decision on registration
• 4.3. Remark on registration
• 4.4. Review of the decision on registration: Application of administrative procedure and judicial review
• 4.5. Correction of mistakes: The liability of the state (cadastre)
• 4.6. Effect of the registration
• XII. Proof of ownership: Which documents are provided?
• D. Summary
• Part VI: Contractual Transfer Under Forthcoming Kosovo Civil Code
• I. Preliminary observations
• II. Process of codification and KDCC structure
• III. The relationship with European Civil Codes: Between tradition and modernisation
• IV. Book I on General Part: An improvisation of BGB General Part and its legal impact on contract law
• V. Contractual transfer under KDCC
• VI. Book 2 on Obligations
• VII. Book 3 on Property: Ownership and real rights
• VIII. Registration of ownership and other real rights
• IX. Summary
• Part VII: Conclusions
• Bibliography
• Series index