Bulletin - Vlada Crne Gore

Law on property-legal relations to be adopted soon
BULLETIN OF THE MINISTRY OF FINANCE/APRIL - JUNE 2006
easier practical application of the law.
Konstantinovic's model of legal norms formulation
was mostly used in the course of drafting this law. The
model is characterized by transparency, good layout and
elegance of the legal text, and in this process were used
the best experiences in comparative law adjusted to our
reality and adjusted to the international standards in this
field.
In the course of drafting this law we transparently determined
subjects, objects and principles of real rights as
well as general principles on which they are based (definiteness,
prohibition to abuse real rights, limitations of ownership
rights etc.) Legal notion of ownership, social function
of ownership, possibility and manner of ownership limitation
are determined and other real rights are determined
and defined (easement, real burden and pledge, ownership
rights of the state etc.) The law also regulates the issues
of acquiring and termination of the ownership rights
on the basis of legal affairs, inheritance, decision of the public
authority under the conditions determined by the law
etc. Certain, so called original ways of acquiring ownership
rights are separately regulated (non-owners' acquiring of
ownership) such as creation of a new object, modification,
unification, constructing at somebody else's land, longstanding
plants, fruits separation, actual possession, acquiring
from non-owners etc. then occupation, planting and
sowing at somebody else's land, reclaimed piece of land,
deposit, river flow alteration, abandoned river bed, new river
island, swarm of bees etc.
The law separately regulates the issues of co-ownership
rights, rights of joint ownership and tenant ownership.
Of course, easement rights, personal easement and
neghborly rights are also regulated in a relevant manner.
Right to pledge, as right of creditors (pledge or mortgage
creditor and pledgee) to enforce their claims before
all the other creditors, is also regulated by this law.
Because of uniqueness of regulating all the property
relations there is, of course, also fiduciary ownership, i.e.
fiduciary transfer of ownership rights, what was until
now regulated by a separate law.
Easement, as factual ownership of objects, is also regulated
by this law.
This law separately regulates also issues of foreign
persons rights in terms of acquiring ownership rights to
movable and immovable objects. These issues are particularly
significant from the aspect of privatization and foreign
investments, i.e. possibility that foreign legal and
physical persons invest their capital without being disturbed.
In relation to the existing decisions from the mentioned
federal law, decisions in this law in this area, are significantly
more liberal and the rights of foreign physical
and legal persons to acquire real estate in Montenegro,
along with existence of reciprocity, are equalized with
the rights of our citizens.
Special significance and quality of this law in terms of
establishment of clear ownership relations and determination
of titular of ownership, i.e. elimination of quasiownership
terms of reference from the legal system as
well as terms such as "usage", "permanent usage" and other
relapses of social ownership, is contained in transitional
and final provisions of this law. Namely, separate
articles regulate the issue of ownership rights transfer
from social ownership and registration of real owners'
ownership right. Thus, real legal institutes of ownership
are established and outdated terms of ownership rights,
especially in the framework of construction land are eliminated
from the real estate register. Exactly that undefined
land ownership caused significant difficulties and
problems in transition in the past period, in particular in
the privatization procedure of economic associations or
parts of their property.
Constitutionally guaranteed full ownership rights of
all entities - holders of ownership rights, starting from citizens
to economic associations and local governance
will be established by enforcement of this law in the part
of transitional and final provisions. Therefore, two constitutionally
guaranteed forms of ownership, private and
state, with full capacities of disposal and enjoyment of
ownership rights will play a role.
Prototype of this decision can be found in the Law on
Restitution of Dispossessed Ownership Rights and Indemnification
("Official Gazette of the RoM", No. 21/04)
by which the unjustifiably dispossessed property within
the construction land is not returned to the former owners
for usage but as their ownership.
As it is known, in the first years after the World War II
radical measures of disempowerment of the owners of
production instruments in Yugoslavia were carried out on
the basis of confiscation of property, regulation on agrarian
reform and nationalization of priovate and economic
enterprizes, buildings, construction land and other regulations
on ownership right disempowerment and its transfer
to social, i.e. national ownership. Socialization of construction
land is continued because according to the Constitution
of SFRY from 1974 private ownership right to
construction land in the towns and populated places as
well as in the other areas envisaged for housing and other
complex constructions was not allowed.
Constitution of the Republic of Montenegro from
1992 terminated social ownership and established single
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