Real estate law is one of the legal areas in which the law firm has successfully represented clients for more than 50 years.
Property law is a set of legal rules and principles governing the procedure and method of transfer of title and other rights in rem and obligations in respect of immovable property from one person (natural or legal) to another person (natural or legal).
Law firm Križanec from Ljubljana offers legal and professional assistance in the field of real estate law. Lawyers in the law firm are experts in legal transactions related to real estate and offer knowledge of the basic laws relating to real estate law.
A real estate law lawyer needs to be well aware of the Law Code and the Land Registry Act.
For the legal transfer of property and other rights in immovable property, it is necessary to delimit between legal-business transfer, transfer by inheritance, transfer by decision of the competent state authority (e.g. judgment) and transfer by law (e.g. transfer). In scratch is the most common transfer of title on the basis of a legal and commercial transaction (sale).
Lawyers from the Law Firm Križanec from Ljubljana have extensive experience in all the above procedures and offer professional assistance, in the process of negotiations, until the conclusion of legal transactions and finally until the transferee is entered in the land register, assistance in succession proceedings regarding the transfer of real estate into the possession and ownership of the heirs, regarding the acquisition of immovable property and proof of the conditions for acquisition under the Law Act, we also represent the parties before the court and assure them that they receive the best legal assistance in litigation in the exercise of their legal interests in the acquisition or dispatch of immovable property.
In order to acquire title through a legal deal, a cumulative requirement is required (all assumptions must be met):
The first assumption of the acquisition of title on the basis of a legal transaction is that a legal transaction is entered into between the parties (buyer and seller, donor and endowment) in accordance with the applicable law (Obligaction Code, In-Law, etc.). The parties to the contract agree on what conditions one party will transfer to the other party the right to property and what are the rights and obligations of both parties in the transfer of ownership. If the transaction between the parties is not validly concluded, the legal consequence of such transaction is vouciance or nullity.
The second premiss for acquiring ownership is the right to property, namely the land registry permit (intabulation clause) and the authentication of the transferor’s signature on it. The Land Registry has authorised an explicit and unconditional declaration by the transferor (seller or donor) to transfer the right of ownership to the acquirer (buyer or donor). It is very important that the declaration is unconditional, which means that it is not possible to bind the land registry on any condition (e.g. the following land registry has been wrongly authorised: “I expressly and unconditionally transfer the right to property to the seller if the seller pays me a price within 5 days”). As regards the protection of the buyer and the seller in the process of transfer of ownership, we will explain below.
A good real estate lawyer must provide the client with a personal and professional attitude, be responsive and highly professional, and the acquisition must follow the highest international standards..
The law further states that it is not sufficient for the dissuad to simply make such a land register declaration, but to verify the signature of the buyer (the seller or donor on it) is also to be certified. Verification must necessarily be notarial and administrative verification is not sufficient as the notary must verify that the conditions for the transfer of ownership are fulfilled (whether there is a certificate of end-use of land, whether there are pre-rights of beneficiaries under sectoral laws, whether the land is located in protected areas, etc.)
As we have already mentioned, the acquisition of ownership of immovable property in the event of legal and commercial transfer requires, among other conditions, that registration in the land register is required, whereas the law, inheritance and decision of the state authority acquires the right to property originally without entering the land register and therefore the entry in the land register has only a public function.
In practice, the entry in the land register is proposed by the buyer or the donor, since he has a legitimate interest in registering as the owner of the property. However, enrolment can be made subject to a number of safeguards, which will be explained below.
The seller or donor must be able to dispose of the property. This means that it has unlimited ownership of the property, which in practice means that the transferor is the owner of the property, his right to property is not limited by rights in rem or obligations (prohibition of disposal and burden, option, black construction, etc.).
Lawyers at the Law Firm Križanec from Ljubljana offer our clients expertise and, above all, the rich in the transfer of property rights. The transfer of title is an important legal transaction in the daily life of an individual and is an important decision in life and therefore, through the process of the client, they must receive professional assistance in order to achieve the objective of divestment and acquisition of the right to property, which is legally flawless.
In practice, the procedure for the transfer of title is carried out as follows:
(Z * are marked stages which are in practice subject to agreement between the parties and are not necessary in the transfer of ownership.)
The negotiations are the initial stage of the transfer of ownership, where the parties agree on the terms of the transfer of ownership from one to the other and, for example, in the case of the sale of the amount and conditions of payment of the price. When the parties accept the agreement or when the acquirer accepts the offer of
The conclusion of a pre-contract makes sense in the case of the sale of the property, when the parties agree that, until the conclusion of the main contract, they will ensure that certain obligations they have laid down to transfer ownership (e.g. the seller is required to provide the buyer with a building permit, a useful permit, and the seller is required to ensure that certain servique or prohibitions on the transfer of the property, etc.) are deleted from the land register). However, by concluding a pre-contract, the parties can also agree that the buyer will pay the seller aro at the time of the conclusion of the pre-contract. In so far as the pre-contract fulfils all the elements of the main contract, one party may require the other to conclude a principal contract with it or may also impose that obligation on the other party. The form of the pre-contract must be the same as the requirement for the conclusion of a legal transaction and since contracts with which ownership rights are transferred require a written form, the same form is required for the pre-contract.
At the end of the negotiations or when the parties have agreed to conclude a main contract with the content as agreed between the parties (in respect of transfer of title, deadlines for the delivery of immovable property, payment of the price and other obligations of each party).
A good real estate law lawyer needs to know the Law of The Real Code and the Land Registry Act.
After the signing of the main contract, the dirator must notify the contract to the tax authority for tax purposes (e.g. sales tax on immovable property, capital gains tax, gift tax, etc.)
In the process, the tax authority issues a decision on the payment of the taxes to be paid. After payment, the tax authority issues a tax receipt (in practice stamps a stamp on the contract with a tax and tax receipt) and delivers the original of the contract to the customer.
In the case of the sale of immovable property, the transferor is a legal person (subject to value added tax) may decide not to apply for payment of turnover tax on immovable property but to charge VAT from the transfer of the right to property. if these components are not already contained in the contract.
Subject to the condition laid down in the preceding paragraph, the verification of the signature of the dissuading the land registry permit shall be certified. We have already mentioned that authentication must be nota by a nota while administrative verification is not sufficient. The land registry permit may also be issued by a delegate, but the delegate must be expressly authorised to give the land registry authorisation and such authorisation must be certified.
When certifying the signature with a notary, the customer must submit the original of the contract certified by the tax authority. In so far as ownership of the plot is transferred, the customer must also provide the notary with a certificate of dedicated use of the land of the competent municipality where the property is situated. There are transferability restrictions on the certificate or on the land (pre-existing rights under the Land Regulation Act, the Land Farm Act, the Nature Conservation Act, the Water Act, etc.) and therefore the certificate must be obtained in the event of a legal transaction and before the signature of the transferor on the land registry permit is certified.
This point will be discussed below in the chapter protecting the buyer and seller in the process of transfer of ownership.
After verification of the contract of sale, the price is paid and when the acquirer pays the entire purchase price to the acquirer, the delivery of the contract to the acquirer is followed so that the latter can be entered as the owner of the property in the land register.
In the case of a gift contract, which is a unilateral legal transaction, the donor may, after the signature is authenticated, immediately hand over the contract to the endowment as the gifted person has no obligation at the time of conclusion of the contract to the donor.
Once all the conditions above have been fulfilled, the other is to hand over a certified contract to the acquirer with which the latter is entered in the land register as owner.
It may submit an application for registration directly to the land register, or may authorise a lawyer and a notary to do so.
The parties to the contract may also agree in the contract when the buyer, as the owner of the property, will hand over the property. It can do so at the stage of contracting, or only by paying a price or by entering the land register.
The transfer of title in respect of immovable property is different from the transfer of title in the case of movable property, since, in the case of movable property, the condition of simultaneous performance is easier to achieve by handing over the movable property to the buyer at the same time as the purchaser pays the price. In the case of immovable property, however, that at the same time cannot be achieved since the transfer of ownership requires the fulfilness of all the abovementioned conditions. As a result, in practice, at the same time, performance is corrected by certain legal institutions, such as the pre-declaration of title and the recognition of the right to property and the retention of the contract or price.
The pre-acquisition of the right of ownership protects the order in which the title is acquired. The eligible applicant for the pre-endorsement is the buyer who only needs a legal transaction between the divestment and the acquirer in order to subscribe, on which the signature of the divestment is not certified. By entering the pre-registration of the property right in the land register, the buyer obtains an order as he signs up as the owner of the property on the day on which the pre-registration is effective. The deadline for apologizing for the pre-sign is 1 month (or 2 months in the case of court decisions). The essence of the protection of the order is that the acquirer is to register as the owner of the property on the date of registration of the pre-registration, irrespective of whether other rights for the benefit of third parties are proposed or entered in the case of immovable property after registration of the pre-registration.
Let’s explain the case:
Buyer A and Vendor B enter into a sales contract. In that case, B may apply to the notary for registration of the pre-registration of the title. The sales contract is concluded on 16 May 2020 then B submits an application for registration of the pre-registration on 17 May 2020 and the court shall enter the application in the land register on the same day. After registration of the pre-endorsement, the procedure as described above (notification to the tax authority, verification, etc.) follows. B receives a certified sales contract on 10 June 2020 and can then submit an application for registration of the right to property in the order of registration and will thus be registered in the land register as the owner of the property dated 17 May 2020 and not as at 10 June 2020. In doing so, let us add that on 18 May the owner of the property entered into a loan agreement as a creditor and that the creditor secured his claim by mortgage on that same property. The application to enter the mortgage was filed on 18 May and the same day in the land register. As a result of the signed pre-registration, B will thus acquire ownership of the property in the order of the pre-registration of 17 May 2020 and the registered mortgage will be deleted from the land register as a result of the registration in the pre-prescribed order.
The perception of the order to acquire ownership in the land register is proposed by the owner of the property. In this case, it does not need to be opposite the buyer or other acquirer. The sort order is effective for 1 year and during this period the owner of the property may freely transfer the right of disposal of the marked order to a specific buyer. The classification of the order protects the order in the same way as described above in the pre-recognition of the right to property, except that the apology process is slightly different.
In practice the seller of the property on the property, which will be the subject of the sale enter the mark of the order. It may do so with a notary who, as a trusting notary, retains the right to dispose of the marked order. The seller then concludes a sales contract with a particular buyer and declares to the trust notary that he transfers the right of disposal to that buyer. The buyer can then be registered as the owner of the property on the day on which the land register was entered to mark the order in order to protect the order against other potential entries in the land register.
As we have mentioned in practice in the case of immovable property, it is impossible to achieve the simultaneous attest of performance (simultaneous payment of the price and transfer of ownership of the property). One solution to this situation is to hold a certified contract or to store a price with a trustee. The trustee can be a lawyer, a notary, an intermediary and other.
In the storage of the contract with the trustee, the parties agree with the trustee that the seller will hand over the certified contract to the trustee and that the trustee should keep the contract until the buyer has provided him with confirmation that he has paid the full price. This protects both the seller and the buyer and thus we are closest to the simultaneous performance, since the buyer will acquire the document capable of entering his title when he pays the price and, from the seller’s point of view, the contract will be handed over to the buyer when the buyer proves that the purchase price is paid.
In the storage of the price, it is the buyer who hands the trustee the purchase price into storage and orders him to hand the purchase price to the seller at the time when the seller delivers to the trustee a certified contract capable of entering the buyer’s property right in the land registers.
At the law firm Križanec we offer our clients professional assistance in all these safeguards in legal transactions, and we can also act as a trustee in order to achieve the simultaneous achievement and achievement of the goal of all parties.