Nina Planojević, LLD*
OBTAINING AND DURATION OF THE RIGHT TO CONSTRUCTION IN THE PRELIMINARY DRAFT OF THE REPUBLIC OF SERBIA CIVIL CODE
Summary
In this paper the author analyses how the Preliminary draft of the Republic of Serbia Civil Code regulates the issues of obtaining and duration of the right to construction. As for the first issue, the author concludes that the Preliminary draft only foresees the right to construction based on a contract, while three other methods of obtaining this right: will, court decision and usucaption, are just mentioned, which causes a number of dilemmae. This is particularly case with the usucaption since it remains unknown under which conditions it can take place and because of the fact it is one of disputable ways of obtaining this right, rarely existing in comparative law. The author positively assesses the provisions regulating the form, content and legal effect of the contract. Here the author points to the possibility of amending the provision which regulates the amount of compensation that the owner of the plot needs to pay for the building after the expiration of the right to construction, suggesting it should be a market value rather than a fair price. The author also suggests the possibility of introducing the right to construction which would be free of charge, as well as its obtaining through an inter vivos transfer. The foreseen registration of the right to construction as a special form of land and property registration, is something that author finds to be an odd (since it is not a property), but useful solution.
As for the duration of the right to construction, the author finds that the solution which is presented in the Preliminary draft that foresees the restricted duration of this right is more adequate as for the nature of this right compared to the solutions given in a number of states which do not restrict this period. For the purpose of securing the balance interest of the parties contracting the right to construction, the author proposes the introduction of both maximum and minimum period of duration, as well as the change of the provisions related to the extending the duration of the right to construction. The author also underlines the possibility of transferring this right before its expiration period proposing that the transfer clause should be imperative while the transfer itself should be subject to consent of the plot owner, which can be declined only on reasonable grounds.
Key words: property law, limited rights of ownership, right to construction, obtaining right to construction, duration of the right to construction, the Preliminary draft of the Republic of Serbia Civil Code