Утицај начела официјелности на правни положај странке у управном поступку уписа у катастар непокретности у Републици Србији
The Effect of the Principle of Officiality on the Legal Position of the Party to the Administrative Procedure of Registration in the Real Estate Registry in the Republic of Serbia

Author(s): Milica Torbica
Subject(s): Law, Constitution, Jurisprudence, Public Administration, Public Law
Published by: Правни факултет Универзитета у Источном Сарајеву
Keywords: Ex-officio principle; Real estate cadastre; Cadastral registration procedure; Parties to cadastral registration procedure;
Summary/Abstract: In the 1990s the Republic of Serbia began the process of establishing a single record of immovable properties and rights to them, the real estate cadastre, which replaced the existing land registers, deed system and land cadastre as an administrative body. As a rule, the administrative registration procedure in the real estate cadastre in Serbia is initiated ex officio, by delivering a document suitable for registration by the parties obliged to deliver: courts, public notaries, public bailiffs, and other public administration bodies. Very short limitation periods are stipulated for submitting the cadastral documents and for issuing decisions based on the submitted documents. In issuing its decision, the cadastre verifies the formal correctness of the submitted documents without examining their material legality. In this way the registration process is simplified and accelerated, and the public register of immovable property and related rights, with the prescribed mandatory registration and digitization, inevitably becomes more up-to-date. Under the said special administrative procedure, active role of the party is not provided for; that is, the party utilizes the possibility of protecting its rights and interests only after the adoption of the first-instance decision and by means of the right to appeal. Obviously, it was considered that by prescribing clear rules for each stage of the procedure, with the support of information technology by various authorities, the party cannot even find itself in a situation where its rights are threatened in any way. However, despite the high degree of responsibility and professionalism, the obligee may make a mistake by, for example, submitting incomplete documentation or delivering documents concerning different types of registration and the said immovable property (registration of encumbrances, property or records of some other rights, which might restrict further use of the immovable property) in the wrong order. As the cadstre cannot make a positive decision in such situations, and the obligee of the delivery does not have the possibility of supplementing the procedure or changing the order of the submitted requests ex officio, providing such a right to the party would be justified. Since the party neither caused nor influenced the situation which affects them alone and under the basic principles of the general administrative procedure, we consider it justified to ensure an active role for the party in the process until the decision is reached, which would protect not only the interest of that party but also the public interest.

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