| Abbreviations |
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25 | (2) |
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27 | (8) |
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27 | (5) |
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B Research aims and structure |
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32 | (2) |
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C Looking for similarities and differences |
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34 | (1) |
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D English version of the laws |
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34 | (1) |
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PART II HISTORY, PRINCIPLES AND FEATURES OF PROPERTY LAW RELATED TO CONTRACTUAL TRANSFER OF IMMOVABLES |
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35 | (34) |
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35 | (1) |
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B A Historical Perspective On Civil Law Codification |
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36 | (9) |
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I A short historical background |
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36 | (8) |
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1 Period of time until 1974 |
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37 | (1) |
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2 Period of time from 1974 to 1989 |
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38 | (1) |
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2.1 A short history of LBPR |
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39 | (1) |
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2.2 A short history of LOR |
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39 | (1) |
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3 Period of time from 1989 to 1999 |
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40 | (1) |
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4 Period of time from 1999 to 2008 |
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41 | (2) |
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5 Period of time from 2008 to present |
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43 | (1) |
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II The start of Civil law codification |
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44 | (1) |
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C Basic Concepts and Principles Under Kosovo Property Law as a Prerequisite for Contractual Transfer of Immovables |
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45 | (22) |
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45 | (1) |
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II Basic information on Kosovo property law |
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45 | (2) |
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1 Legal base and structure |
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45 | (1) |
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2 Current LPORR: its history and function |
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46 | (1) |
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III Characteristics of rights in rem contrary to rights in personam: Ownership vs contract |
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47 | (1) |
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IV The principle of numerus clausus |
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48 | (1) |
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V Ownership under Kosovo law |
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49 | (6) |
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50 | (1) |
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2 Ownership in comparative law |
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51 | (1) |
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3 Characteristics of ownership |
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51 | (1) |
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52 | (1) |
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4.1 Individual ownership of immovables |
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53 | (1) |
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4.2 Co-ownership of immovables |
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53 | (1) |
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4.3 Joint ownership of immovables |
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54 | (1) |
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VI Protection of ownership |
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55 | (2) |
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1 Protection under law of property |
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55 | (1) |
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55 | (1) |
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55 | (1) |
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2 Protection under law of obligations |
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56 | (1) |
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56 | (1) |
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2.2 Unjustified Enrichment |
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56 | (1) |
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3 Protection under administrative law and civil procedure |
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57 | (1) |
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VII The significant distinction between movables and immovables |
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57 | (6) |
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1 The concept of things under Kosovo property law: The influence of comparative law |
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57 | (1) |
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58 | (1) |
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3 Role of the distinction between movables and immovables |
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59 | (1) |
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3.1 Determination of territorial competence |
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59 | (2) |
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3.2 Acquisition of ownership |
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61 | (1) |
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61 | (1) |
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3.4 Creation of pledge and mortgage |
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61 | (1) |
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4 Types of immovables under Kosovo law |
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62 | (1) |
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VIII Superficies solo cedit principle |
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63 | (1) |
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IX Transferability and non-transferability of immovables |
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64 | (2) |
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1 Transferability of immovables |
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64 | (1) |
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2 Non-transferability of immovables |
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65 | (1) |
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X Nemo plus iuris principle under Kosovo law |
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66 | (1) |
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67 | (2) |
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PART III CONTRACTUAL TRANSFER OF IMMOVABLES UNDER KOSOVO LAW: INFLUENCE OF LAW OF CONTRACT AND ITS INTERACTION WITH OTHER BRANCHES OF PRIVATE LAW |
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69 | (78) |
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69 | (1) |
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B An Introductory Perspective to the Kosovo Law of Contract Relevant to the Transfer of Ownership of Immovables |
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70 | (14) |
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70 | (1) |
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II Information on the legal base: Perspective from LOR of 1978 towards civil law codification |
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70 | (1) |
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III General and Special Law of Obligations: Its role as a general part of civil law |
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71 | (1) |
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IV Sources of the law of obligations: Their interaction in transfer of immovables |
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71 | (1) |
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V Concept of a non-separate of law of obligations: A difference from German law |
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72 | (1) |
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VI Mandatory and non-mandatory rules: The application and position of the party autonomy |
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72 | (1) |
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VII Influence of ex-Yugoslavian LOR: Kosovo based on the Slovenian model |
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73 | (1) |
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VIII Movables and immovables share the same contract law rules |
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73 | (1) |
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74 | (2) |
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74 | (1) |
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2 LOR provides no definition of the contract |
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74 | (1) |
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3 The comparative perspective: Which solution should be part of the Kosovo Civil Code |
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75 | (1) |
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X Contracts that transfer the immovables and their causal nature |
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76 | (1) |
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XI Notarial form of the contract |
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76 | (1) |
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XII Formation of contracts for the transfer of immovables: A difference with regard to the contracts for movables |
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77 | (1) |
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XIII Essential elements of a contract |
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78 | (1) |
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XIV Time and place of the contract: The lack of a proper approach by LOR |
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79 | (1) |
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XV Pre-contract as a mechanism of the contract: A perspective of an approach by law and practice |
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79 | (2) |
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1 Definition of the pre-contract |
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80 | (1) |
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2 Form and content of the pre-contract |
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80 | (1) |
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3 Effect of the pre-contract: Timing and refusal to conclude the main contract |
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80 | (1) |
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XVI Language of the notarial contract |
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81 | (1) |
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XVII Conclusion of the contract through representation |
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81 | (1) |
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XVIII The interpretation of a contract |
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82 | (1) |
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XIX Termination of contract |
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83 | (1) |
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C Contractual Transfer System of Immovables in Kosovo |
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84 | (26) |
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84 | (1) |
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II The most important dividing line: Derivative and original acquisition under Kosovo law |
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85 | (1) |
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III The same transfer rules for all derivative titles |
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85 | (1) |
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IV Contractual transfer of movables and immovables |
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86 | (7) |
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1 Basic idea of contractual transfer |
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86 | (1) |
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2 Contractual transfer qualification |
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86 | (1) |
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3 Contractual transfer of movables |
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87 | (1) |
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4 The power of the parties to design the contractual transfer of immovables |
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88 | (1) |
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5 Contractual transfer of immovables under LPORR |
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88 | (1) |
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5.1 A short historical overview: The position of the LBPR |
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88 | (1) |
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5.2 Requirements for the acquisition of ownership under Article 36 LPORR |
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89 | (2) |
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5.3 Article 36 LPORR and its relation with causal and abstract systems |
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91 | (1) |
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5.3.1 The position of the local legal doctrine |
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91 | (1) |
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5.3.2 Author's observation on Article 36 LPORR: Kosovo law provides a causal system |
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92 | (1) |
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V A short introduction to regional contractual transfer systems of immovables |
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93 | (1) |
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VI To choose causal or abstract system: A proposal for Kosovo Civil Code |
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94 | (2) |
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1 Abstract system would solve some problems in Kosovo |
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94 | (1) |
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2 Causal system reflects the causa of the contractual parties |
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95 | (1) |
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3 The animus theory of Lars van Vliet |
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95 | (1) |
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3.1 The content of the animus theory |
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96 | (1) |
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3.2 Animus theory and its report with the causal and abstract system |
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96 | (1) |
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VII Unitary concept of transfer |
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96 | (2) |
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1 What is meant by unitary concept? |
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96 | (1) |
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97 | (1) |
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3 Component parts and accessories of the immovables |
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98 | (1) |
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VIII Transfer of co-ownership |
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98 | (1) |
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IX Transfer of joint ownership |
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99 | (1) |
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X Transfer of ownership together with real rights |
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100 | (1) |
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XI The impact of the possession in contractual transfer |
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100 | (1) |
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100 | (1) |
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100 | (1) |
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3 Transfer of possession is not required for the transfer of ownership |
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101 | (1) |
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XII No single provision on transfer of title under EU law |
|
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101 | (1) |
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XIII Kosovo Private International Law: No freedom of choice of law on transfer of immovables |
|
|
101 | (1) |
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XIV Loss of ownership of immovables |
|
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102 | (1) |
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XV Acquisition of ownership without a valid obligation: How to solve the cases of informal transactions? |
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103 | (2) |
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103 | (1) |
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2 The proper solution: Acquisition by prescription |
|
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103 | (2) |
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3 The role of the notarial practice |
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105 | (1) |
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XVI Good faith acquisition of ownership in immovables |
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105 | (2) |
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XVII Interaction of property law and contract law with other fields of private/civil law in transfer of immovables |
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107 | (3) |
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1 Interaction with notarial law |
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108 | (1) |
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2 Interaction with family law |
|
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108 | (1) |
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3 Interaction with inheritance law |
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108 | (1) |
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4 Interaction with tort law |
|
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109 | (1) |
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5 Interaction with insolvency law |
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109 | (1) |
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6 Interaction with civil procedure |
|
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110 | (1) |
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D Validity and Invalidity of Contracts that Transfer the Ownership of the Immovables |
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|
110 | (23) |
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110 | (1) |
|
II Validity of the contract: Interaction of property law and law of obligations |
|
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110 | (8) |
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1 The approach of the legal doctrine |
|
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111 | (1) |
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2 Full application of nemo plus iuris |
|
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112 | (1) |
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3 Identification of notary, parties and object |
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112 | (1) |
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112 | (1) |
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113 | (1) |
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5.1 No difference for the capacity to contract of natural and legal persons |
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114 | (1) |
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114 | (1) |
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5.3 Additional rules determining the capacity to contract |
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115 | (1) |
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5.4 Required capacity for the conclusion of the contract |
|
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115 | (2) |
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6 Notarial form of the contract |
|
|
117 | (1) |
|
III Invalidity of the contract |
|
|
118 | (15) |
|
1 Distinction of invalidity: Some terminological aspects |
|
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118 | (1) |
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2 Same rules for nullity of all contracts: No differences with regard to movables and immovables |
|
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119 | (1) |
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3 Legal acts that determine the nullity |
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119 | (1) |
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4 Absolute or relative nullity? Characteristics of this distinction |
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119 | (1) |
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5 Grounds for absolute nullity |
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120 | (1) |
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120 | (2) |
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122 | (1) |
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6 Grounds for relative nullity |
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123 | (1) |
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7 Differences and legal consequences of nullity: Application of different rules of private law |
|
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124 | (1) |
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7.1 Relative nullity produces same effects as absolute nullity: Author's arguments contrast the local legal doctrine |
|
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124 | (1) |
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7.2 A concise view of the procedural aspect |
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124 | (1) |
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7.3 Same effects of material law |
|
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125 | (1) |
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8 Competent authority to decide for nullity |
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125 | (1) |
|
9 Interaction of law of obligations and law of property in legal consequences of nullity |
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126 | (1) |
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10 The effects of contracts with absolute or relative nullity: A common analysis with examples |
|
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126 | (1) |
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10.1 Application of criminal law and civil procedure: Their interaction in establishing nullity |
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126 | (1) |
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10.2 Legal effects of the single contract: Contract between A and B |
|
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127 | (1) |
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10.3 Legal effects of the double contract: A concluded contract between B and C |
|
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127 | (1) |
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10.4 Effects of contract in a chain |
|
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127 | (1) |
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10.4.1 Application of property law |
|
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128 | (1) |
|
10.4.2 Application of the law of obligations |
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129 | (1) |
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10.4.3 Application of the LON and the liability of the notary |
|
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130 | (1) |
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11 Declaration of nullity by the court after registration: Legal effects between contractual parties |
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130 | (1) |
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12 Nullity and insolvency law |
|
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131 | (1) |
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12.1 Transactions before bankruptcy |
|
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132 | (1) |
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12.2 Transactions after bankruptcy |
|
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133 | (1) |
|
E Contracts With Legal and Material Defects and Their Legal Consequences on Transfer of Ownership of Immovables |
|
|
133 | (14) |
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|
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133 | (1) |
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II The difference between invalidity and defects |
|
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134 | (1) |
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III Unitary approach of the defects by LOR: No difference for movables and immovables |
|
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134 | (1) |
|
IV Fields of application: The position of LOR on contracts with and without compensation |
|
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134 | (1) |
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135 | (6) |
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1 Concept of legal defects: Interaction of LOR and LPORR |
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136 | (1) |
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2 Role of the notary to avoid legal defects |
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136 | (1) |
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3 Can the parties design the exclusion or limitation of the liability for legal defects? |
|
|
137 | (1) |
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4 Examples of legal defects: Interaction of law of obligations and other civil law branches |
|
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137 | (1) |
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4.1 Transfer of immovables without permission of the co-owner |
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138 | (1) |
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4.2 Transfer of immovables in which the pre-emption right exists |
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138 | (1) |
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4.3 Transfer of immovables in which a mortgage is created |
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138 | (1) |
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4.4 Transfer of immovables in which a servitude exists |
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139 | (1) |
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4.5 Transfer of immovables under temporary insurance measure |
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139 | (1) |
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4.6 Transfer of immovables regarding the property of another person |
|
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139 | (1) |
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4.7 Transfer of immovables restricted by the rules of inheritance law |
|
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140 | (1) |
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4.8 Transfer of rented immovables |
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140 | (1) |
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5 Remedies for legal defects |
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140 | (1) |
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6 Time-limit regarding legal defects |
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141 | (1) |
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VI Material defects: Cases of (non) liability |
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141 | (6) |
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1 Existence of material defects |
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142 | (1) |
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2 Inspection of immovable property: Visible and hidden defects |
|
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143 | (1) |
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3 Contractual limitation or exclusion of the liability for material defects |
|
|
143 | (1) |
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4 The rights of the buyer as a result of material defects: The legal hierarchy of remedies |
|
|
144 | (1) |
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5 Time-limit for requesting material defects |
|
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145 | (1) |
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|
146 | (1) |
|
PART IV CONTRACTS THAT TRANSFER IMMOVABLES |
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|
147 | (62) |
|
|
|
147 | (1) |
|
B Transfer Based on Contract for Sale |
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|
148 | (26) |
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148 | (1) |
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148 | (1) |
|
III Unitary type of regulation: No difference for the sale of movables and immovables |
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149 | (1) |
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149 | (1) |
|
V Definition of the contract for sale |
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150 | (1) |
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VI Effects of the contract for sale |
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151 | (11) |
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1 Parties of the contract for sale |
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151 | (1) |
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2 Obligations of the seller |
|
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152 | (1) |
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2.1 Obligation to deliver the immovable property |
|
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152 | (1) |
|
2.1.1 Preliminary observations |
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152 | (1) |
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2.1.2 The delivery is required for the acquisition of ownership? |
|
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153 | (1) |
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2.1.3 Delivery is important regarding the passing of risk |
|
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153 | (1) |
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2.1.4 Modes of delivery: Relevance to Kosovo causal system |
|
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154 | (1) |
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2.1.5 Time and place of the delivery |
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155 | (1) |
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2.1.6 Remedies against the non-delivery |
|
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155 | (1) |
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2.2 Obligation of the seller to transfer ownership |
|
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155 | (1) |
|
2.2.1 Modalities of the obligation to transfer the ownership |
|
|
156 | (1) |
|
2.2.2 Res commercium and res extra commerciuam |
|
|
156 | (1) |
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3 Obligations of the buyer |
|
|
156 | (1) |
|
3.1 Payment of the purchase price |
|
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157 | (1) |
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|
157 | (1) |
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3.1.2 The role of the payment in acquisition of ownership |
|
|
157 | (1) |
|
3.1.3 The price regarding money |
|
|
158 | (1) |
|
3.1.4 Pretium certum, verum and iustum |
|
|
159 | (2) |
|
3.2 Takeover of the immovable property |
|
|
161 | (1) |
|
VII Special cases of contract for sale |
|
|
162 | (12) |
|
1 The sale with the pre-emption right |
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162 | (1) |
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162 | (1) |
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1.2 Requirement of registration in the register |
|
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163 | (1) |
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1.3 Notification, duration and transferability |
|
|
163 | (1) |
|
1.4 Consequences for disrespecting the pre-emption right: The position of the third parties |
|
|
164 | (1) |
|
2 Sale for the actual and future immovables |
|
|
165 | (1) |
|
3 Sale of the immovable property destroyed before contracting |
|
|
165 | (1) |
|
4 Sale of privatised immovables |
|
|
166 | (1) |
|
|
|
167 | (1) |
|
6 Sale of joint ownership |
|
|
167 | (1) |
|
7 Sale of immovables to foreigners |
|
|
167 | (1) |
|
|
|
167 | (1) |
|
7.2 Development under DPRFC |
|
|
168 | (1) |
|
7.2.1 The position of foreigners under Draft-Law on Property Rights of Foreign Citizens |
|
|
168 | (1) |
|
7.2.2 The core distinction between movables and immovables |
|
|
169 | (1) |
|
7.2.3 Different rules for EU and Non-EU persons |
|
|
169 | (1) |
|
7.2.4 Limitations for foreigners |
|
|
170 | (1) |
|
7.2.5 DPRFC relationship with other laws |
|
|
171 | (1) |
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8 Sale with power of attorney |
|
|
171 | (1) |
|
|
|
172 | (1) |
|
10 Double sale and protection of third parties |
|
|
172 | (2) |
|
C Transfer Based on Contract for Exchange |
|
|
174 | (4) |
|
|
|
174 | (1) |
|
II Definition of exchange |
|
|
174 | (1) |
|
III Both parties have the role of the seller |
|
|
175 | (1) |
|
IV What can be exchanged? |
|
|
176 | (1) |
|
V Problem with territorial competence |
|
|
176 | (1) |
|
VI Exchange of public and private immovables |
|
|
177 | (1) |
|
D Transfer Based on Contract for Donation |
|
|
178 | (9) |
|
|
|
178 | (1) |
|
|
|
178 | (2) |
|
III Donation in case of death |
|
|
180 | (1) |
|
IV Specifics on capacity to contract |
|
|
181 | (1) |
|
V A distinction between donation, testament and sale |
|
|
182 | (1) |
|
|
|
182 | (2) |
|
1 Donor's rights and obligations |
|
|
182 | (1) |
|
2 Donee's rights and obligations |
|
|
183 | (1) |
|
VII Revocation of donation contract |
|
|
184 | (3) |
|
1 Revocation due to poverty of the donor |
|
|
184 | (1) |
|
2 Revocation due to deep ingratitude by the donee |
|
|
184 | (1) |
|
3 Revocation due to donor's children who were born after |
|
|
185 | (1) |
|
|
|
186 | (1) |
|
5 Consequences of revocation |
|
|
186 | (1) |
|
6 Time-limit of revocation |
|
|
187 | (1) |
|
E Transfer Based on Contract for Delivery |
|
|
187 | (7) |
|
|
|
187 | (1) |
|
II The legal regime and social significance |
|
|
187 | (1) |
|
III Definition of contract for the delivery |
|
|
188 | (1) |
|
IV Legal effects and characteristics: Acquisition of ownership inter vivos or mortis causa? |
|
|
188 | (1) |
|
V Similarities and differences with other contracts |
|
|
189 | (1) |
|
VI How is the property divided? |
|
|
190 | (1) |
|
VII Conditions for the validity |
|
|
190 | (3) |
|
1 Consent of the descendants |
|
|
190 | (2) |
|
|
|
192 | (1) |
|
3 Position of the delivered property |
|
|
192 | (1) |
|
VIII Right of deliverer's spouse |
|
|
193 | (1) |
|
IX Revocation of delivery |
|
|
193 | (1) |
|
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193 | (1) |
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194 | (1) |
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3 Legal consequences of revocation |
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194 | (1) |
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F Transfer Based on Contract for Lifelong Maintenance |
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194 | (9) |
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194 | (1) |
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II The social significance |
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195 | (1) |
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195 | (1) |
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196 | (2) |
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1 Position of the immovable property |
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196 | (1) |
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2 Current or future immovables |
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197 | (1) |
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197 | (1) |
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3.1 Who can the contractual parties be? |
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197 | (1) |
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3.2 Attributes of the parties |
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198 | (1) |
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V Legal nature, delimitation with other contracts and characteristics |
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198 | (1) |
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VI Transfer modalities: Mortis causa acquisition of ownership |
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199 | (1) |
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VII Termination of the contract |
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200 | (3) |
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1 Termination based on Article 564 LOR |
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200 | (1) |
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2 Termination based on Article 565 LOR |
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201 | (1) |
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3 Termination based on Article 566 LOR |
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202 | (1) |
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4 Form and consequences of the termination |
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202 | (1) |
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VIII Liability for debts of the maintained party |
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203 | (1) |
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G Transfer Based on Contract for Joint Investment |
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203 | (5) |
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203 | (1) |
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204 | (1) |
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III Legal nature and similarities with other contracts |
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204 | (1) |
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IV Legal nature and relationship with other contracts |
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205 | (1) |
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V Some effects and procedural aspects |
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206 | (2) |
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1 Application for the permission of construction |
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206 | (1) |
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207 | (1) |
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207 | (1) |
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208 | (1) |
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PART V CADASTRAL SYSTEM AND IMMOVABLE PROPERTY RIGHTS REGISTERED IN THE FUNCTION OF CONTRACTUAL TRANSFER OF IMMOVABLES |
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209 | (28) |
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209 | (1) |
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B Role of the Cadaster in Transfer of Immovables an Approach from Law and Practice Perspective |
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210 | (9) |
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210 | (1) |
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II A short historical introduction: Cadastre from Yugoslavian period until now |
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210 | (3) |
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1 Cadastre under Yugoslavia law: The non-establishment of the land registers in Kosovo |
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210 | (2) |
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2 Cadastre after independence of Kosovo |
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212 | (1) |
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III Interaction between cadastre and register |
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213 | (1) |
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IV Organisation of the cadastre |
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213 | (2) |
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1 Kosovo Cadastral Agency |
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214 | (1) |
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2 Municipal Cadastral Offices |
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214 | (1) |
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V Content of the cadastre |
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215 | (1) |
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VI The background of challenges |
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215 | (3) |
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1 Recovery of cadastral books from Serbian authorities |
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216 | (1) |
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2 Access of notaries to the cadastre |
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216 | (1) |
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3 New measurements on land |
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217 | (1) |
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4 Increase of human capacity |
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217 | (1) |
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VII Review of the contract by the cadastre: Authorisations of the cadastre |
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218 | (1) |
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C Register for Immovable Property Rights as a Fundamental Instrument in the Transfer of Immovable Property |
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219 | (15) |
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219 | (1) |
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II Establishment of the register: A short overview on the LEIPRR |
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220 | (1) |
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III A sub-law to implement LEIPRR |
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221 | (1) |
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IV Requirements for the registration of contract |
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221 | (1) |
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V Systems of registration |
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221 | (1) |
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VI Who keeps the register? Difference from Austrian and German law |
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222 | (1) |
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VII What is registered in the register? |
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223 | (1) |
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VIII Parts of the register |
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223 | (1) |
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IX Maintenance of the register: Manual or electronic form? |
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224 | (1) |
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X Basic principles of the registration |
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224 | (5) |
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1 Principle of the nutnerus clausus: Its full application in the register |
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224 | (1) |
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2 Principle of lex rex sitae: No exceptions from this rule |
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225 | (1) |
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3 Principle of superficies solo cedit: A sole exception |
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225 | (1) |
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4 Principle of constitutive character of the registration |
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225 | (1) |
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5 Principle of party initiative: Its application and exceptions |
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226 | (1) |
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6 Lack of authorisation principle: Application of the law of obligations |
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226 | (1) |
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227 | (1) |
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8 Principle of legality on registration of con tract |
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228 | (1) |
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9 Principle of priority on registration of the contract |
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228 | (1) |
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XI Registration procedure of the contract |
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229 | (4) |
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1 Same rules for individual ownership and co-ownership |
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229 | (1) |
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2 Same rules for the registration of all contracts |
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229 | (1) |
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3 The cadastre requirement for the payment of the full purchase price: Breach of the party autonomy |
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229 | (1) |
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4 Procedure of registration |
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230 | (1) |
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4.1 The request on registration |
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230 | (1) |
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4.2 The decision on registration |
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231 | (1) |
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4.3 Remark on registration |
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|
231 | (1) |
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4.4 Review of the decision on registration: Application of administrative procedure and judicial review |
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|
232 | (1) |
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4.5 Correction of mistakes: The liability of the state (cadastre) |
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|
232 | (1) |
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4.6 Effect of the registration |
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|
233 | (1) |
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XII Proof of ownership: Which documents are provided? |
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|
233 | (1) |
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234 | (3) |
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PART VI CONTRACTUAL TRANSFER UNDER FORTHCOMING KOSOVO CIVIL CODE |
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|
237 | (8) |
|
I Preliminary observations |
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|
237 | (1) |
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II Process of codification and KDCC structure |
|
|
237 | (1) |
|
III The relationship with European Civil Codes: Between tradition and modernisation |
|
|
238 | (1) |
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IV Book I on General Part: An improvisation of BGB General Part and its legal impact on contract law |
|
|
239 | (1) |
|
V Contractual transfer under KDCC |
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|
240 | (2) |
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|
242 | (1) |
|
VII Book 3 on Property: Ownership and real rights |
|
|
243 | (1) |
|
VIII Registration of ownership and other real rights |
|
|
244 | (1) |
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|
244 | (1) |
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|
245 | (4) |
| Bibliography |
|
249 | |
