MORTGAGE LAW
This English translation has been generously provided by the Public Agency Yugoslav Survey
MORTGAGE LAW
Note: This is a true translation of the original Law, but it is not legally binding.
Original title:
ZAKON O HIPOTECI
Prepared by: Jugoslovenski pregled (Yugoslav Survey), Deanska 8/V, Beograd; Tel/Fax: + 381 11 / 32 33 610, 32 32 295; Tel: 32 41 953, 32 40 291; Po.Box 677 www.yusurvey.co.yu E-mail: info@yusurvey.co.yu
2006, Jugoslovenski pregled (Yugoslav Survey) Sva prava su zadrana. Nijedan deo ove broure ne moe biti reprodukovan niti smeten u sistem za pretraivanje ili emitovan u bilo kom obliku, elektronski, mehaniki, fotokopiranjem, snimanjem ili na drugi nain, bez prethodne pismene dozvole izdavaa. All rights reserved. No part of this work may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying and recording, or by any information storage or retrieval system, without permission in writing from the publishers.
CONTENTS
MORTGAGE LAW
Part One
BASIC PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Part Two
ORIGINATION OF MORTGAGE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Part Three
RIGHTS AND DUTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Part Four
SATISFACTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Part Five
CESSATION OF MORTGAGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Part Six
CENTRAL MORTGAGE RECORDING FACILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Part Seven
TRANSITIONAL AND CONCLUDING PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
MORTGAGE LAW
Part One BASIC PROVISIONS
Concept of Mortgage
Article 2 A mortgage shall mean a lien on real estate, which empowers the creditor in the event of the debtors failure to pay a debt due, to request the collection of debt-claim secured by the mortgage (hereinafter: the claim) from the real estate value before the ordinary creditors and before junior mortgage creditors (hereinafter: the mortgagee), regardless of the real estate actual possession.
Subject of Mortgage
Article 3 The following may be the subject of a mortgage (hereinafter: the subject or real estate): 1) an immovable property (title to land, building and the like); 2) a part of a real estate property, in accordance with the decision on partition; 3) a portion in a common immovable property; 4) a separate part of a building in tenure, and/or some other right containing the right of disposal (a dwelling, business premises, garage, parking space, etc.); 5) a right to land authorising the free legal disposition, including in particular the right of construction, right of priority construction or disposition in government and/or social ownership;
6) a building under construction, as well as a separate part of a building under construction (a dwelling, business premises, garage, etc.), irrespective of whether completed or not, provided that a valid building permit has been issued in conformity with the law governing the building construction.
Joint Mortgage
Article 4 For the purpose of securing a claim, a mortgage may encumber several real estates, irrespectively of whether they belong to the same or different owners. In the case specified in paragraph 1 of this Article, the mortgagee may cash the claim by its own bona fide choice from the value of one or several real estates.
Scope of a Mortgage
Article 5 A mortgage shall include the following elements of a real estate: 1) all integral parts of a real estate, produce not separated from real estate, unless otherwise stipulated by the mortgage deed; 2) fixtures to a real estate stipulated by the mortgage deed, but not the objects of property owned by third parties; 3) all improvements in and accretions to the value of real estate occurred after setting up the mortgage.
Secured Claim
Article 7 Any claim, including a future or conditional claim, as well as a claim denominated in foreign currency, may be secured by a mortgage. The claim referred to in paragraph 1 of this Article shall cover the principal, interest and collection costs. The part of a claim not secured by mortgage may satisfied only from the mortgagors residual assets.
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The contractual mortgage rules shall apply respectively to unilateral, statutory and judicial mortgages, unless otherwise provided by law.
Closing a Deed
Article 10 A mortgage deed shall be closed in writing and the signatures affixed on it shall be authenticated by court or some other agency authorised to authenticate signatures on the deeds of real estate conveyance. A mortgage deed may be closed by the owner or some other person having the right of disposal, as well as the investor and buyer of a building under construction or a separate part of a building under construction as referred to in Article 3 of the present Law.
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Registration
Article 11 A contractual mortgage shall be registered at the request of: 1) an owner of the real estate or his/her guardian or legal representative; 2) a mortgagor; 3) a mortgagee. In a case specified in Article 3, item 3, of the present Law, the contractual mortgage shall be registered as follows: 1) on the construction site the mortgage is registered on the building under construction and once the building is entered in the real estate register, the mortgage is registered on the constructed building or a separate part of the building, ex officio; 2) if the owner has sold to the buyer a building under construction or a separate part of a building under construction, the buyers mortgagee as well may request that a mortgage be registered on the building under construction or on a separate part of the building, and once a building is entered in the real estate register, the mortgage on the constructed building or a separate part of the building shall be registered ex officio. If the owner of a building is changed in the course of construction, the new owner shall enter into all of the previous owners rights and duties regarding the persons in favour of whom the mortgage was registered. For the purposes of the present Law, a building under construction shall also include a physically completed building or a separate part thereof, which has not been entered in the real estate register, if the requirements for mortgage registration on a building under construction have been satisfied. The risk of demolition of an improperly constructed building on which a mortgage has been registered shall be borne by the real estate owner, mortgagor and mortgagee, in keeping with their internal relationships.
Mandatory Provisions
Article 12 A mortgage deed shall include the following in particular: 1) name, surname and permanent or temporary address or business name and head office of the mortgagee, pledger, as well as mortgagor, should these be different persons; 2) owners (pledgers) unconditional statement of consent to the mortgage on its real estate being registered by the mortgagee (clausula intabulandi); 3) precise data on the secured debt, currency of accounting and currency of payment, amount of each instalment and the maturity date, place and method of payment, and data on the principal claim, interest rate and other elements on the basis of which the interest rate can be fixed, place and method of payment of interest, as well as the amount of other costs if stipulated, maturity of claims and way of determining the maturity, if the term has not been fixed; 4) data on the mortgaged real estate and/or estates, including also the evidence of ownership and/or some other right referred to in Article 3 of the present Law; 5) data on the real estate elements referred to in Article 5 of the present Law, which are covered by the mortgage.
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Nullity of Provisions
Article 13 Any provision of a mortgage deed on the ground of which, should the debt be not satisfied on maturity, shall be null and void: 1) a mortgagee may sell the real estate contrary to the provisions of the present Law; 2) the real estate becomes the property of the mortgagee or a third party at an unspecified price or a price specified in advance. Any provision of a mortgage contract that accords the mortgagee the right to use the subject of mortgage or to usufruct from the mortgaged property shall be null and void. Any provision of a mortgage contract that prevents the owner from alienating the subject of mortgage or to encumber it by mortgage in favour of a subsequent mortgagee shall be null and void.
2) an express provision and/or statement of the owner that he has been cautioned about the consequences of the failure to satisfy the debt on maturity and that in the awareness of such consequences, he is agreeable to the possibility of the mortgage deed being executed by selling his real estate in conformity with the provisions of the present Law governing the extra-judicial settlement, without the right to litigation, as well as that his real estate shall be vacated forcibly and put in the buyers possession within 15 days from the date of the sales contract, if the owner fails to hand it over voluntarily, unless the mortgage is to be registered on a co-owned interest; 3) a clear provision and/or statement made by the owner that he is agreeable to the mortgagee having access to the real estate, including the right to enter it, irrespectively of who might be in it (owner, lessee, etc.) for the purpose of checking on its maintenance or for other valid reasons, as well as that he is bound to cooperate with the mortgagee in the sales procedure, and particularly to allow access to the mortgaged real estate (entry in a dwelling and the like); 4) an express statement of a third party, if existent, being in direct possession, but not the owner of the mortgaged real estate (a lessee, etc.) that it is aware of the consequence the mortgage deed can produce, including the ejection from real estate and loss of actual possession of it, as well as that he/she is agreeable to the rights and duties referred to in item 3 of this paragraph. Should a mortgage deed or mortgage bond fail to include the provisions referred to in paragraph 3 of this Article, satsfaction shall be carried out in conformity with the law governing the enforcement procedure.
Part Three RIGHTS AND DUTIES Chapter One RIGHTS AND DUTIES OF THE REAL ESTATE OWNER
Rights of the Real Estate Owner
Article 16 The owner shall have the following rights even after the mortgage has been placed: 1) to keep the subject of mortgage in his/her possession; 2) to use the subject of mortgage for its usual purpose; 3) to reap the produce or take the income yielded by the subject of mortgage; 4) to dispose of the subject of mortgage and transfer the right to the acquirer, in which case no changes are made in the mortgagors duty and in the secured claim.
The owner shall look after and maintain the subject of mortgage as expected of a good housekeeper or a good businessman, so that his/her acts or mistakes will not depreciate the real estate. The owner shall insure the subject of mortgage against all of the usual risks prior to closing the mortgage deed. The mortgagee shall have the right of access to the real estate, including the entry in the real estate regardless of who is in it (owner, lessee, etc.), for the purpose of checking on its maintenance or for other valid reasons, if the mortgage has been taken out in conformity with the provisions of Article 15 of the present Law or if so is expressly stipulated by the mortgage deed or mortgage bond. The owner, lessee and any other actual possessor of the real estate shall cooperate with the mortgagee in the sale procedure and particularly allow access to the subject of mortgage (entry in a dwelling and the like), if the mortgage has been placed in conformity with the provisions of Article 15 of the present Law or if that right is expressly stipulated by the mortgage deed or mortgage bond. Where the consent of the person being in actual legal possession of the real estate is not included in the authentic or enforceable document referred to in Article 15 of the present Law and/or in the mortgage deed or mortgage bond, the rights and duties specified in paragraphs 3 and 4 of the present Article shall not be exercised without that persons consent.
2) if no delay is permissible under the circumstances, the mortgagee may take the necessary steps even before being permitted to do so by the court, if the mortgage has been placed out in conformity with the provisions of Article 15 of the present Law, or if so has been expressly stipulated by the mortgage deed or mortgage bond; 3) The mortgagee shall be entitled to request of a court to issue an order for the owner to reimburse the costs incurred. The claim for reimbursement of the costs incurred pursuant to this Article shall be secured without registration and shall enjoy priority in relation to all other registered encumbrances.
Super Mortgage
Article 21 A claim secured by a mortgage may be pledged on the ground of a contract between the mortgagee and a super mortgagee. A contract referred to in paragraph 1 of this Article: 1) shall be concluded in writing and the signatures affixed on it shall be authenticated by a court or some other duly authorised agency; 2) shall include the mortgagees express and unconditional statement that the super mortgagee may be entered in the real estate registry in that capacity; 3) shall produce legal effect regarding the mortgagor as of the date of his being notified in writing of the claim being pledged, from which date the mortgagor may perform his duty only to the super mortgagee or on his written instructions; 4) shall produce legal effect regarding third parties as of the date of entry in the real estate register.
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Assumption of Debt
Article 22 A debt to a mortgagee may be transferred under a contract of assumption of debt secured by a mortgage between the owner and acquirer of the subject of mortgage and/or a contract between the owner, acquirer of the subject of mortgage and the debtor, if the owner is not a mortgagor. The contract referred to in paragraph 1 of this Article: 1) shall be concluded on the occasion of disposal of the subject of mortgage, in the form of a separate contract or a provision or part of the contract of alienation of the subject of mortgage; 2) shall produce legal effects subject to the mortgagees consent given in writing.
Choice of Satisfaction
Article 25 A mortgagee may request that its mature claim be satisfied as follows: 1) Firstly from the value of the mortgaged real estate and then from the mortgagors other property;
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2) from the value of mortgaged real estate and the mortgagors property at the same time; or 3) Firstly from the mortgagors property and then from the value of mortgaged real estate.
Time-barred Claim
Article 26 A mortgagee may be satisfied from the value of mortgaged real estate even after the secured claim was barred due to statute of limitation. In the case referred to in paragraph 1 of the present Law, interest and other periodical dues may not be satisfied from the subject of mortgage.
Subsequent Contract
Article 27 A subsequent contract shall mean a separate contract concluded by a mortgagee and a real estate owner in writing on the maturity of a secured claim, the signatures affixed on it being subject to authentication by a court or some other duly authorised authority, which may stipulate the following: 1) a partial or full transfer to the mortgagee, in lieu of the satisfaction of debt, of the right of ownership or some other law of property right relating to the subject of mortgage; 2) any other transaction conducive to the entry of satisfaction of mortgage on real estate. The mortgagee shall notify the mortgagor of the subsequent contract without any delay.
Personal Subrogation
Article 28 If the mortgage debt is paid by a person who is not the mortgagor, that person shall act in the capacity of a mortgagee in relation to the mortgagor and third parties.
The notice shall include the following: 1) data on the mortgage deed and mortgaged real estate; 2) description of the breach of mortgage deed on the basis of which the foreclosure is requested; 3) steps the mortgagor must take towards paying the debt and avoiding the sale of real estate; 4) deadline for the payment of debt the mortgager has to meet in order to avoid the sale of real estate; 5) warning that, should the mortgagor fail to take the mentioned steps and thus pay the debt, the mortgagee will claim the full amount owed and that with the sale of mortgaged property, he/she shall lose possession of the real estate involved; 6) name of and necessary particulars on the mortgagees representative, to whom the mortgagor may address for more information; 7) other information the mortgagee might deem important.
Adnotation of Foreclosure
Article 31 The mortgagee shall file with the real estate registry at the same time a request for the adnotation of foreclosure in favour of the mortgagee, together with the following: 1) a copy of the warning of foreclosure of the real estate; 2) a copy of the mortgage deed; 3) a statement that the mortgagor has failed to satisfy the debt to date; 4) evidence that the first warnining and the foreclosure warning have been sent to the mortgagor and owner. The real estate registry shall adnotate the foreclosure warning in favour of the mortgagee within seven days from receipt of the adnotation request, and send to the mortgagee, mortgagor and the real estate owner the decision on the adnotation of foreclosure. The adnotation of foreclosure and the decision on foreclosure shall include the following:
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1) an express authorisation of the mortgagee to sell the real estate in the capacity of mortgagee and on his own behalf, in conformity with the provisions of the present Law, as of the effective date of the decision, but not within less than 30 days from the date of the decision; 2) prohibition against the mortgaged real estate being sold by its owner. The owner, mortgagor and mortgagee shall be entitled to file a complaint with the competent authority against the decision on the adnotation of foreclosure, within 15 days from receipt of the decision. The competent authority shall render a second-instance decision within 15 days from the complaint filing date. The complaint shall be accepted should the mortgagor or owner present to the real estate registry indisputable evidence in writing of the following: 1) that the claim is non-existent; 2) that the mortgage is non-existent; 3) that the claim has not fallen due; 4) that the debt has been paid. The second-instance decision referred to in paragraph 5 of this Article shall be final and enforceable and no lawsuit or legal remedy may apply to it.
Right to a Meeting
Article 32 The mortgagor and/or the real estate owner may demand a meeting with the mortgagee or his/her representative within 10 days from receipt of the warning of foreclosure of the real estate, and either of the latter shall see it on its premises during working hours. The mortgagees right to proceed with the sale of mortgaged real estate may not be restricted or postponed if the parties fail to reach an agreement in the way proposed by the mortgagor at that meeting.
Communications
Article 33 For the purposes of the present Law, communications (reminders, notices, etc.) shall be deemed delivered to the mortgagor if they have been sent by registered mail to the address of the following: 1) mortgaged real estate; 2) mortgagor, as stated in the mortgage deed, if the mortgagors address differs from that of the mortgaged real estate; 3) real estate owner, if the owner is not the mortgagor. For the purposes of the present Law, a communication shall be deemed delivered to the mortgagee if it has been sent by registered mail to the mortgagees address as stated in the mortgage deed or to the address stated in the mortgagees note requesting the mortgagors reply.
Before proceeding with sale, the mortgagee shall set an approximate market price of the real estate fixed by an authorised court-appointed expert.
Sale by Auction
Article 35 The mortgagee may stage the sale by auction of the real estate by himself or entrust it to a person professionally engaged in these matters. The announcement of the sale by auction shall be prominently published in a daily newspaper that is on sale in the region in which the mortgaged property is situated, at least 45 days before the scheduled date of sale. The announcement shall include the following: 1) description of the real estate; 2) mortgagees name and surname or registered name; 3) mode of communication with the mortgagee; 4) opening price at auction; 5) time and place of auction; 6) other information that the mortgagee might deem important. The mortgagee shall also send to the mortgagor, the real estate owner and third parties having rights to the mortgaged real estate, the information about the announcement covering the following: 1) all elements of the announcement; 2) statement indicating the term within which the whole debt may be paid in order to avoid the sale. The opening price at auction may not be less than 75% of the estimated value. If the first auction fails, the opening price at the second auction may not be less than 60% of the estimated value. Notwithstanding the provisions of paragraphs 5 and 6 of this Article, the mortgagee and the owner or mortgagor may make an agreement in making arrangements for the staging of auction, whereby the real estate involved may be sold for less than 75% and 60% of the estimated price respectively. The mortgagee may make his/her own bid at the auction.
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5) mode of distribution of the sales proceeds; 6) date on which the real estate is to be vacated; 7) statement concerning the term within which the whole debt can be paid in order to avoid the sale of the real estate involved.
Chapter Three SATISFACTION WHEN THE SUBJECT OF MORTGAGE IS A BUILDING UNDER CONSTRUCTION
Assignment of a Building Permit
Article 39 If the subject of mortgage is a building under construction, its sale for the sake of settlement shall be effected by assigning the right to build provided by an effective building permit against a charge, and selling the things incorporated in the building under construction. At the request by the buyer of a building under construction, the authority that has issued the building permit shall issue to the buyer, without any delay, an identical building permit in his/her name and cancel the old building permit. In the case referred to in paragraph 2 of this Article, the buyer shall acquire by the operation of law all of the sellers rights and duties based on the permit even before the permit is issued to the buyer. 16
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Bankruptcy
Article 42 If the subject of a mortgage is subjected to bankruptcy proceedings, the mortgagee shall have the right to separate satisfaction out of the proceeds of the real estate.
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Public Interest
Article 47 A mortgage shall also cease to exist when the title to the subject of mortgage is transferred to a third party in public interest (expropriation and the like), in conformity with law and by decision of a competent authority. In the case referred to in paragraph 1 of this Article, the following shall apply: 1) the wiping out shall be carried out at the request of the new real estate owner; 2) the mortgagee shall acquire a lien on the claimed indemnity or the indemnity paid out and shall register the mortgage on the real estate the title to which was transferred to the owner instead of the real estate that was expropriated in public interest. The indemnity referred to in paragraph 2, item 2), of this Article shall be distributed among the mortgagees in the order of registration of their mortgage rights.
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Renunciation of Mortgage
Article 51 A mortgage may also cease to exist on the basis of a unilateral declaration of intention made by a mortgagee in writing, where the latters signature is authenticated by a court or some other duly authorised agency. In the case referred to in paragraph 1 of this Article, the wiping out shall be effeced at the owners request to which the declaration referred to in paragraph 1 of this Article is attached.
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2) if the registered mortgagee is no longer existent or cannot be found, or if that is the case with his/her heirs (universal successors) or the persons who were subsequently registered as transferees of the claim secured by mortgage; 3) if the registered mortgagee has not requested or received in the past either the principal claim or interest, or if that has not been requested by any authorised person which is entered in the real estate registry. In the case referred to in paragraph 1 of this Article, the wiping out shall be carried out at the request of the owners, co-owners or joint owners.
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Competence
Article 58 The Central Mortgage Recording Facility shall be kept by the Republic Institute of Geodesy Real estate Registry (hereinafter: the Real Estate Registry) in compliance with law. The duties of the Real Estate Registry shall be as follows: 1) seeing to the Central Mortgage Recording Facility being kept lawfully, systematically and promptly;
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2) prescribing the form of the reports that the competent registries have to present to the Real Estate Registry without delay; 3) taking such other action and steps as are necessary for trouble-free and proper operation of the Central Mortgage Recording Facility, in conformity with law.
Data to be Entered
Article 59 The Real Estate Registry shall do the following ex officio: 1) enter the mortgages that have been entered in the corresponding real estate registry; 2) enter other data on the mortgages entered in the corresponding real estate registry; 3) enter any change in or deletion of the data referred to in items 1) and 2) of this paragraphs made in the corresponding real estate registry. The Real Estate Registry may regulate the details of the entry of data referred to in paragraph 1 of this Article. In entering the data, the Real Estate Registry shall act directly on the ground of information and it shall not issue special documents.
The Fee
Article 61 A fee shall be payable for the entry of data in the Central Mortgage Recording Facility. The fee referred to in paragraph 1 of this Article shall be paid on filing the application for entry in or deletion from the appropriate real estate registry. The amount of the fee referred to in paragraph 1 of this Article shall be fixed by the Real Estate Registry, subject to the Governments approval.
Funding
Article 62 The funds required for the establishment and start up of the Central Mortgage Recording Facility shall be provided from the Republic of Serbia Budget. The funds required for the maintenance of the Central Mortgage Recording Facility shall come from the collected mortgage registration fees and other income of the Real Estate Registry, in conformity with law.
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