In March last year a proposal of new Act on Land Registry (Cadastral Act) and on change and amendment of other acts (hereinafter referred to as the “Proposal”), which shall replace the current act no. 162/1995 Coll., was submitted for the interdepartmental consultation procedure. Considering the changes in organisation of local state administration, the submitter, the Geodesy, Cartography and Cadastre Authority (hereinafter referred to as the “Authority”) considered it to be appropriate not to elaborate the new Cadastral Act before adoption of the legal regulation on capacity and competence of local state administration bodies (which took place in October 2013). The preparation of a completely new Cadastral Act occurred with respect to the actual needs of the Land Registry modernization, as well as to the extent of proposed changes. The Proposal has been submitted to the governmental session in March this year; so far no standpoint has been presented by the government thereto.
The new legal regulation aims to clarify the regulation of rights and obligations in the Land Registry segment and to create legislative conditions for improvement of its functioning in consideration of practise requirements. These requirements include particularly acceleration and enhancement of real property registration, simplification of access to the data recorded in the Land Registry and increase of the localisation certainty of real properties position and shape on the land surface.
The Proposal introduces quite a number of changes; we shall mention the most significant of them (some of them will be in analyzed in more detail further below):
- new definition of the land as the subject of right by its distinct borders with simultaneous projection of such borders into the respective vector cadastral map;
- separate part of the Cadastral Act dedicated to geodetic and cartographic activities;
- obligation of the Authority to maintain the list of authorized geodesists and cartographers in Land Registry segment;
- obligation to officially verify the land borders demarcation operate;
- new institute of the geometric plan for determination of land border in the referential geodetic system for location determination;
- Land Registry electronization;
- pecification of the “Land Registry” term as the public registry of the selected real properties (lands, buildings, underground substations, residential and non-residential premises);
- definition of the “subject of the Land Registry” (it is such real properties and rights related thereto that are precisely defined in the Cadastral Act);
- implementation of the evidence of real properties prices to the Land Registry;
- implementation of new special types of the cadastral proceedings;
- extension of reasons for interruption and suspension of the proceeding on application for registration with the Land Registry;
- specification of provisions on recording proceedings and proceedings on correction of an error in the cadastral operate;
- introduction of new output from the Land Registry – inventory of real properties, which shall include the list of all real properties of one owner, administrator or tenant from the whole area of the Slovak Republic.
Geometric plan for determination of land border (§ 94 par. 4 of the Proposal)
Under the explanation report to the Proposal, more than a third of the overall number of lands in Slovakiawere determined and localized in Ugrian geodetic systems. In order to specify the borders evidence, the Proposal introduces the new institute of geometric plan for determination of land border in the reference geodetic system for location determination. In accordance with the actual legal regulation, only the geometric plan prepared for the purpose of division, merging of lands or other change of their factual border can be registered in the Land Registry.
Should the Proposal be adopted, the land owners shall be enabled to participate in deciding on the quality of their land’s registration in the Land Registry and the degree of possibility to reconstruct its borders in the field. Understandably, the state does not dispose of capacities to secure overall measurement of all lands so far unrecognised in this referential system; therefore it shall primarily render this responsibility to the owners. The owners should be interested in determination of the exact area of their lands especially as far as such matters are concerned as tax collection and land evaluation.
New special types of cadastral proceedings (§ 60 and 61 of the Proposal)
Two new types of special cadastral proceedings shall be implemented in terms of the Proposal – “Supplementation or change of the data registered about the owner, other entitled person or real property” and “Land Registry data verification”. First of the aforementioned proceedings shall be used for supplementation and change of the data already registered in the Land Registry. Such data are concerned as change of surname, title of the legal entity, permanent residence etc. This supplementation or change can be executed as a part of other proceedings as well, for instance there is a possibility to register the change of surname in the proceeding on application for registration in the Land Registry, without necessity to initiate a separate proceeding. However, it is not possible to register data on rights to real properties within this proceeding, since this is possible solely in proceeding on registration or recording.
Within the second of the abovementioned proceedings the district office shall verify correctness of Land Registry data registered on the basis of public and other documents, it shall investigate notified or otherwise discovered change in Land Registry data and their registration process. This proceeding may be initiated by the district office on its own initiative or by the motion of the person, whose rights shall be affected by the Land Registry data. The aim of the newly adopted legal regulation is to eliminate unreasonable motions for error correction particularly in such way that it can precede the proceeding on error correction and simultaneously it shall be charged with administration fee. Provided that the district office discovers erroneous data during the proceeding on Land Registry data verification, it shall initiate the proceeding on data correction and return the administrative fee to the petitioner.
Extension of reasons for interruption and suspension of the proceeding on application for registration with the Land Registry (§ 38 and 39 of the Proposal)
The former reasons for interruption of proceeding on application for registration with the Land Registry shall be extended by a case of delivery of the prosecutor’s protest or action in administrative justice against precedent decision issued in registration proceeding, performance or non-performance of recording, relating to the real property, the right to which is the subject of proceeding. Under the current state, if an administrative action is delivered to the district office during the registration proceeding, the district office does not interrupt the proceeding, since it does not constitute a legitimate reason for proceeding’s interruption. Considering the fact that filing of an administrative action does not preclude further transfers of the real property in question, problematic situations occur in practise. In case the decision of the district office on registration is subsequently terminated based on such action, but in the meantime the real property is acquired by further transferee in good faith, it is impossible to execute the court’s decision on cancellation of the precedent decision on registration.
The situation of withdrawal of the participant from the contract or agreement before issuance of the registration decision shall constitute further reason for interruption of registration proceeding on the basis of the Proposal. The stated reason was supplemented in accordance with the case law of the Supreme Court of theSlovakRepublic(file no. 6 Sžo/229/2010). After delivery of withdrawal from the contract, the district office shall interrupt the proceeding in order to examine whether the withdrawal had been delivered to the disposition sphere of the other party and whether there is a dispute over its validity. The district office shall simultaneously summon the proceeding participants to file an action for determination of invalidity of the withdrawal from contract within 60 days as of delivery of the decision on proceeding’s interruption, provided that they call the withdrawal’s validity in question. Should filing of the action on determination of withdrawal’s validity be proven, the district office shall repeatedly interrupt the proceeding by reason of preliminary question proceeding. If the participant does not file an action, the district office shall suspend the proceeding.
The abovementioned reason is to be implemented to the Proposal on the ground of the fact that the district office as an administrative body is not entitled to investigate the question of validity of withdrawal from contract. Presently, if a participant notifies the district office before issuance of the registration decision that it had withdrawn from the contract, the district office only examines whether the reason declared by the participant is lawful or permissible under the contract and it does not examine the withdrawal’s validity. This problem should by solved by Proposal’s adoption.
In line with the principle of registrations’ priority, the Proposal has explicitly stated that the fact that the proceeding is preceded by previously initiated registration or recording proceeding shall be the reason for proceeding’s interruption. Such interruption shall be officially recorded in the file and the proceeding participants shall be notified thereon; there is no need to issue a separate decision on such interruption by the district office.
In compliance with modification of reasons for interruption of registration proceeding, the reasons for proceeding’s suspension are to be supplemented by the case of proceeding participant’s withdrawal from the contract or agreement before issuance of the registration decision and at the same time the action for determination of withdrawal’s invalidity has not been filed to the court within stated period after proceeding’s interruption. The Proposal also specifies cases when it is impossible to file an appeal against decision on proceeding’s suspension – if the proceeding participants abandoned the application for registration, if the administrative fee has not been paid up within established period and if other district office already acts in the respective matter.
Partial record execution (§ 50 of the Proposal)
By reasons of practise, the Proposal introduces the possibility of partial record execution, provided that the conditions for execution of the record are fulfilled in relation to some real properties only. The district office shall issue an official registration on execution of the record in relation to some real properties, which shall contain the reason for its execution to the selected real properties only and the district office shall cancel the seal marked in relation to all real properties mentioned in the recording deed.
The Proposal shall become effective as at January 01, 2016, whereas it is presumed that before adoption of Proposal’s final version, the regulation included therein will have to be harmonized with new civil procedural codices, which shall become effective half year later.
The necessity of such harmonization is obvious e.g. from the provision of Section 343 par. 2 of the Civil Dispute Code, under which the court might establish a pledge for securing creditor’s monetary receivable by securing measurement, if there is a concern that the execution will be jeopardized. The pledge shall be established by issuance of resolution on securing precaution and shall arise by registration with the respective registry. It is obvious that should the lien be established over a real property registered in the Land Registry, the lien registration shall take place by its recoding in the Land Registry. In such case, the record shall have a constitutive effect, whereas in terms of the Proposal, as well as currently effective act, the record has vitally a declaratory function. This discrepancy will have to be removed until the Proposal’s adoption.