LEGALIZATION OF CONSTRUCTED OBJECTS IN THE VIEW OF NEW-ADOPTED LAW
With the aim of more efficient implementation of proceedings of a legalization of illegally constructed objects, the National Assembly of the Republic of Serbia has recently adopted amendments to the Law on Building Legalization (“Official Gazette of RS” No. 96/15) ( hereinafter: Amendments).
In 2015, illegally constructed objects were recorded and the unique database was formed, which contains 2.041.936 illegally constructed objects. About 50% of recorded objects refers to residential buildings and about 48% refers to auxiliary and economic facilities.
By January 1st, 2019 a record of objects that are not registered in the Real Estate Cadastre shall be established, which will be available on the digital platform of the national geospatial data infrastructure.
Objects that are in a process of legalization cannot be disposed. In that sense, public authorities in charge for legalization of object are obliged to submit to the competent cadastre offices within 6 months from the date of entry into force of Amendments, that is, by April 6th, 2019, confirmation that the facility is in a process of legalization in order to register a ban of disposal of these objects.
The most drastic change is related to a demolition of illegally constructed buildings. Namely, a demolition can be executed now on the basis of a final decision by which a request for legalization is rejected or dismissed. Taking into account that decision issued by the ministry in charge of construction affairs or the an autonomous province’s public authority cannot be challenged by an appeal (an administrative dispute can be initiated by an action), that decision becomes final at the date of issuance. In this respect, decision on demolition issued by authorized ministry/autonomous province can be executed straight from a day of issuance of decision. On the other hand, a decision issued by a unit of local self-government can be challenged by an appeal, thus a demolition cannot be executed straight from a day of issuance of decision. Further flow of proceeding depends on whether party will raise an appeal, type of a decision in appellate proceeding, etc.
The previous rule envisaged that a demolition shall be carried out only after a decision of rejecting or dismissing the request becomes valid.
Also, a final decision by which a request for legalization is rejected or dismissed shall be submitted by a construction inspector without delay, and at the latest within three days from the receipt of a copy of the decision, to the public company, public utility company, company or entrepreneur who has temporarily connected an object to its network or infrastructure (such as electricity network, gas network and electronic communications network or district heating network, water supply and sewerage). Mentioned legal entities are obliged to cut off the object from the network or infrastructure to which it is temporarily connected, within 30 days from the receipt of the said act. In addition, mentioned legal entities cannot connect to the network or infrastructure an object that is in the process of legalization. Otherwise, they will be fined by monetary penalty in the range from RSD 1,500,000 to 3,000,000 for business offense.
The Amendments specify which objects can be subject to the legalization. Namely, the subject of legalization is an object for which the request for legalization was submitted by 29th January 2014 in accordance with the previously applicable building legalization law and which is visible on the satellite recording of the territory of Republic of Serbia from 2015. If such a request has not been submitted, but the object is visible on the satellite recording and the competent construction inspector has issued a demolition decision, the same object may be subject to legalization. However, an object may also be legalized if the request for legalization has not been submitted and a demolition decision has not been taken, but the object is visible on the satellite recording. In this case, legalization shall be initiated by a notice on the visibility of the facility on a satellite recording submitted by competent authority in charge of state surveying and cadastre affairs. The authorities implementing the procedure of legalization are obliged to check the visibility of the object on the satellite recording.
Also, it is envisaged that all objects constructed without an issued building permit or decision on the approval of construction work after 27th November 2015 are not subject to legalization and a competent construction inspector has an authority to issue a demolition decision for these objects.
An owner of illegally constructed object is obliged to submit a proof that a registration for determining the property tax for the object in question is submitted. The data submitted must correspond to the content of the technical document and the data from the survey of geodetic work submitted in the procedure of legalization.
An owner of an object should submit to the competent body evidence of a tax registration, after which the competent authority will inform the applicant of the amount of the fees for legalization, which depends on the class, surface, purpose of the object and way of using the object. Upon submission of proofs of tax registration and paid fees for legalization, the competent authority will issue a decision on legalization.
So far, the ministry in charge of construction affairs, a competent authority of the autonomous province or a local self-government unit was responsible for issuing a decision on the legalization of an object, but the Amendments stipulate that cities that have municipalities have the power to entrust the implementation of the process of legalization to municipalities.
In the process of legalization of illegally constructed objects, it is mandatory to prepare a report on the current situation with a survey of geodetic work. Amendments introduces a provision that provides for a sanction if the company or other legal entity that produce the report on the current situation includes incorrect data in it, i.e. it does not show the actual state and degree of completion of the object. In this case, the authority in charge of legalization shall initiate the procedure for seizing the license for the responsible person.
As before, for registering property rights on the basis of legalization, as well as for determining the home number, no administrative fee is paid. In addition, it is envisaged that a competent authority shall ex officio, within three days from the date of a decision approving the legalization of an object becomes final, submit to the authority in charge of state surveying and cadastre the proposal for the removal of a recording of a prohibition of disposal of objects on which property rights are acquired under the Law on special conditions for the registration of ownership rights on buildings constructed without a building permit. On the other hand, the owners of these objects may submit a request from the date of the decision on the legalization becomes valid, to delete a recording in a real estate list, that the property was acquired on the basis of the Law on special conditions for registration of ownership rights on objects built without a building permit.
The deadline for finalization of procedures of legalization is now set for 5 years. If within that period the object is not legalized, the competent authority shall issue a decision rejecting the request.
Finally, it is envisaged that proceedings that have not been completed by the date of the entry into force of the Amendments will be terminated by the provisions of the Amendments.
Attorney at law Damir Petrović
The information contained herein have been provided only for the purpose of general information and cannot be considered as a legal opinion or legal advice. Accordingly, the Law Firm Petrović Mojsić & Partners disclaims all responsibility and accept no liability in respect to actions taken or not taken based on any or all the contents contained herein.