What does the Real Estate Cadaster Bill bring to the table?

Except for point 5 above, which ought to be approached with caution (more on this later), the proposed changes are, in principle, welcome. Namely, they are focused on tidying up the information contained in and enhancing the transparency of real estate records. The end result will be unified information regarding real estate, especially for tax and other systemic needs of state authorities and local communities. The existing spatial planning regulations governing real estate records, ownership, spatial planning and construction are not harmonized, with the registration procedures outdated and cumbersome. 

The Real Estate Cadaster Bill (hereinafter: Bill) provides for the introduction of a unified record of data on plots, buildings and legally independent parts of buildings. Real estate data is currently managed via three different sets of records, namely the building cadaster, the land cadaster and the real estate register. The Bill is set to abolish those individual records and establish a unified real estate cadaster. This should ensure greater transparency and harmonization of individual data, update existing records with additional layers and data (e.g. addition of geolocation information, including certain rights in rem), and facilitate access to the data. 

A key facet of the Bill is the possibility of having the location or area details associated with an individual right in rem (e.g. easement area details) entered in the cadaster. 

Real estate records as currently governed by the Real Estate Records Act (hereinafter: ZEN) do not allow for the entry of location-accurate rights in rem. An in rem right pertains only to a part of a real estate. Even where rights in rem are entered, they appear to pertain to the real estate as a whole. In practice, it is often not evident from the land register as to what exactly an individual easement or building right pertains to, as this information is usually stated only in the documentation used to register this right in the land register, and is rarely found in the description of the mentioned right in the land register (even where provided, descriptions tend to be unambiguous and unreliable). This can lead to confusion and ambiguity regarding encumbrances on an individual property and conflicts between the holders of individual competing rights in rem on the same property. Confusion also arises when assessing whether a right holder has a legal interest in being a party to a particular legal proceeding (as it is not always clear whether the proceedings in question would interfere with his/her legally protected interests). 

The option to enter right in rem location information (easement or building right) and the creation of a link between location and the right entered in the land register, as provided for in the Bill, adds transparency as to real estate encumbrances. This is important for 1) protecting the easement beneficiary or the holder of the building right against possible encroachments of his right; 2) protecting the easement holder or owner of the encumbered real estate against unauthorized encumbrances of his right, and 3) clearing up confusion between holders of rights in rem that compete with each other in terms of content (but not necessarily in terms of location as well). Finally, the entry of geolocation information about the area individual right in rem pertains to might in practice prove important in determining the notice parties when issuing building permits. 

The Bill also makes provision for the introduction of a unified cadastral procedure, which would replace the current regime which has separate procedures for the preparation of report and data recording. Combining the engineering and administrative part of the cadastral procedure will result in an integrated cadastral system for all users. 

Making electronic access mandatory will speed up and streamline the cadastral procedure and that of the ordnance survey authority. The Bill stipulates two types of requirement for registration or change of data in the real estate cadaster: application accompanied by a report and application without a report. An application without a report is envisaged as an exception, this option will only be available in cases/circumstance specified by law (e.g. when calculating the plot area or amending data about the building or a part thereof). Under the Bill, in all other cases, cadastral procedures will be conducted based on applications accompanied by a report. The difference between the two types of application lies in how they are filed and processed. Unlike an application without a report (which under the Bill can be submitted either in writing or placed on the record at the ordnance survey authority’s offices or e-mailed to the ordnance survey authority), applications accompanied by a report may only be submitted electronically. Applications accompanied by a report prepared by an ordnance survey company must be submitted by that same company on behalf of the applicant. Ordnance survey companies and designers must submit applications and accompanying reports electronically. Data entry applications will have to be filed electronically (save in the mentioned cases), decisions will generally be issued in electronic form, and all documents in cadastral procedures will have to be submitted electronically by the ordnance survey company making the application. 

The most noticeable change under the Bill is the possibility of losing the right to be notified of a cadastral proceeding in the event the holders of property rights or other rights in rem entered in the land register are incorrect or incomplete. Namely, the Bill stipulates that only those persons/entities registered in the land register under a personal identification number (EMŠO) or registration number, and building managers who are entered in the real estate cadaster with a registration number, will be given notice of cadastral proceedings. All other right holders who are not classed as parties to the cadastral proceeding will be deemed to have been given notice if information about the cadastral proceeding is posted in the cadaster information system, on the website of the ordnance survey authority and on the government’s »e-Uprava« portal for at least 15 days before the proceeding commences. The purpose of this regulation (in addition to streamlining cadastral procedures) is to encourage rightsholders to put right data held about them in the land register. 

The proposed regulation, according to which these holders will not be personally notified of cadastral steps or proceedings affecting their real estate, may be questionable from the perspective of the right to be heard and possible (excessive) encroachment on property rights. This might see it fall at the legislative procedure hurdle. In any case, a close eye should be kept on developments surrounding the Bill and a proactive approach taken to ensure data held in the land register is up-to-date.

Author: Klavdija Kek, Senior Associate