Acheter un bien immobilier en Serbia
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1 - What form can this agreement take? Preliminary contract?
In Serbia, the terms concerning the form of the principal contract shall also apply to the form of the preliminary contract.
That means that all real estate sales preliminary contracts must be concluded in the same form as principal contract itself, that is, private written form solemnized by a notary (notarial solemnization) or, in some cases, the form of notarial authentic instrument . If the preliminary contract is concluded in some other form (i.e. simple written form, verification of signatures) it would be considered null and void.
2 - With whom must the parties (buyer/seller) formalise the initial agreement? Is a legal form imposed?
In the case of a preliminary contract solemnized by a notary, contractual parties may formalize, that is write, the preliminary contract themselves or with a proffesional help of the lawyer.The notary will solemnize the preliminary contract and he/she is liable for both the form and the content of the private preliminary contract . The procedure of solemnization exceeds the legal responsibility of notary in case of verification of signature and makes a notary legaly responsible both for the form and content of the private preliminary contract. Also, if the private preliminary contract has not been read to the parties by notary and explicitly accepted by the parties it would be null and void.
In a case of an authentic instrument preliminary contract is assembled directly by the notary making him/her liable for the content of the contract.
3 - What are the legal effects of this preliminary contract? Is a preliminary contract necessary?
Preliminary contract creates an obligation for both parties to conclude the principal contract with the terms agreed in preliminary contract but only if it includes all elements of the principal contract.
The preliminary contract is not necessary, but it is not uncommon in practice, especially in case of financing from the banking loan.
4 - Are there amounts to be paid, and to whom? Can these amounts be repaid?
5 - Are there any consumer protection measures (cooling-off period, right of withdrawal)?
The law itself does not provide any specific cooling-off period.
Contracting parties may agree that one or both parties be authorized to repudiate the contract by paying a rescission fee.
6 - How can I obtain financing? Directly from the banks? Through brokers?
7 - What form does the financing agreement take?
Simple written form. Usualy such agreements are made by banks and they must specific information such as the loan amount, the annual percentage rate, the duration of the contract, etc. Neverthless, creation of the financing agreement in the form on notarial authentic act or its solemnization would allow the financing agreement to be enforceable document once the obligation becomes due, without litigations involved.
If a loan agreement includes the establishment of a security such as mortgage, notarial services are necessary – if the mortgage contains an explicit statement of the debtor or obliged person that direct enforcement of the due obligation may be implemented on the basis of the mortgage, such morgage statement has to be drafted by a notary in the form of notarial authentic act. Such mortgage is enforceable document and it could be realized through extra-judicial proceedings, without intervention of the court.
8 - What do I need to do once I have obtained financing? Who draws up the loan agreement? To whom will the loan be paid?
In most cases, the assets from the bank are first transfered to the loan agreement debtor,that is buyer from the contract. After that the bank would transfer the assets to the sellers acount on the basis of the contract created or solemnized by notary .
The loan agreements are drafted by the bank.
9 - What are the usual types of guarantee requested to finance a residential real estate purchase?
The most usual form of the guarantee requested by the banks is mortgage, that is mortgage which contains an explicit statement of the obliged person that immediate enforcement of the due obligation may be implemented on the basis of the mortgage (so called enforcable extra-judicial mortgage) .
Such morgage statement has to be drafted by a notary in the form of notarial authentic act. If it has been made in any other form it would be considered null and void.
10 - How do I constitute a mortgage/other type of security?
11 - What are the consequences of this mortgage for me?
Such mortgage allow the bank or the other creditor, should the debt be not paid when due, to collect secured claim from the value of the real property in the way provided by law.
If created by a notary in the form of authentic notarial instrument such mortgage is immediate enforcable document – that is, when the due debt is not paid the bank could have the real property auctioned in a highly formalised non contentious proceeding. The bank or other creditor enjoys this right, whoever the current owner of the property may be.
At the moment of authentication, the notary has a duty to inform the parties of legal effects of this mortgage.
12 - What types of information/documents are required for a real estate sale? Concerning the parties? Concerning the property sold?
The most important document is the information about real estates and the existing rights on the real estate (property, mortgage, servitudes, etc...). The information about the real estates could be get through the web-site of the Serbian Cadastre land register: (http://katastar.rgz.gov.rs/KnWebPublic/PublicAccess.aspx).
The excerpts from the web-site are unofficial excerpts. For an official Cadastre land register excerpt, containing the up-to date reliable information about a real estate, the parties would have to submit a written request to the Cadastre land register. The official excerpt is issued in written form immediately upon request, or the day after.
Depending on the agreement some other documentation could be needed (birth cetrificate, marriage certificat, power of attorneys , excerpts from the bussiness register etc...).
For the purpose of indentification parties would have to present valid ID with a photograph.
13 - Who collects the information/documents?
14 - How long does it take to obtain this information?
Signature of the contract
Signature of the act
1 - Is there a compulsory form for the sale agreement (e.g. notarised)?
The real property sales contracts and other contracts on acquiring the rights on real property – has to be formalized in written form (by the parties or with a proffesional help of a lawyer) then solemnized by a notary.
Solemnization of a private contract exceeds the simple verification of the contractual parties signature. The notary who is solemnizing the real property sales contract has a duty not only to determine the identity of the parties but also to determine the true will of parties, to analize the content of the contract and its compliance to the law, including the determination that real property has been identified in the contract properly and according to the Cadastre land register data.
Contracts on disposing of the real property of persons who lack legal capability and minors has to be made in the form of the notarial authentic act.
2 - If several forms are possible, are some more secure or more risky than others?
3 - What is involved in the signature of the act?
If the notary is solemnizing contract or creating a notarial authentic act procedure includes the following:
1) examination of the content of the contract in order to determine its compliance with binding regulations, public order and good practices;
2) indentification of the parties by valid ID card or passport or by hearing of 2 witnesses, including the identification of the capacity and authorization of the parties to conclude such legal transaction;
3) reading of the contract to the parties by a notary (or in the presence of notary) with the explanation of the content and legal effects of the transaction to the parties together with the information of the known and usual risks of legal transaction in question. The notary also has duty to inform parties of any vague, incomprehensible or ambiguous statements and has to expressly point out the possible legal consequences of such statements. If parties, after they have been informed, still insist in their statements, the notary will allow it and add the warnings provided to the parties in regards to this.
4) explicite statement of the parties that the contract is fully in acordance with their true will and signing of the contract in notary's presence.
4 - What are the resulting rights and obligations?
The main buyer’s right is his/her right to transfer ownership (by the registration of the buyer in the Cadastre Land register) and to take possession of the real property in accordance with the conditions set down in the contract.
The main seller’s right is the payment of the sale price, also in accordance with the conditions set down in the contract.
Of course, these are the main rights and obligations of the parties and they are not excluding the possibility for parties to agree additional rights and obligations in the contract with the proffesional help of a notary (the most important are the contract clauses which protects the transaction and parties in a way that the transfer of property would only take place after the seller has received the sale price).
Performance of the contract
1 - What rights must generally be implemented for a real estate sale? Right of first refusal? Preferential right? Compulsory administrative document or authorisation? Etc.
Rights such as right of first refusal or preferential rights may exist depending on the real property and rights on it. They could be set out by specific law or they could be established by a private contract .
Some of these rights are rights of first refusal in favor of the co-owner of the property or (in some cases) the neighbor of the property. Also, inquiries should be made with the state and/or municipality to ascertain whether there is a any special right on the property for sale and whether this right is being exercised. (i.e.. agriculture land, protection of monuments and national parks, etc.).
2 - Who fulfils the formalities for the implementation of these rights?
The notary has a duty to inform the parties of the existence of such rights and of the subject and the procedure for the necessary approvals and/or authorizations.
The documents for the implementation of such rights (i.e. consents of the co-owner or neighbor, authorizations, etc.) are collected by the parties .
3 - How and at what point does the buyer become the owner of the property?
The buyer becomes the owner of the property at the moment of the registration of its ownership title into the Cadastre land register.
The registration is made at the basis of the request submitted by parties themselves (usually buyer).
4 - At what point is the payment made? By the buyer? To the seller?
That is on contracting parties to agree. In most cases, the payment is made immediately after the agreement was concluded in the form of a bank transfer.
Other modalities such as notarial deposits, escrow accounts, etc. are possible, but in most cases the payment will be done in the form of bank transfer.
5 - How must I make the payment?
6 - How can I guarantee that the mortgages taken on the property against the seller will disappear?
7 - What taxes are usually payable on a real estate sale? Are the rates available on an official website? How and by whom are the taxes calculated? When and where is the tax payment due?
In Serbia any sale of real estate property is subject to a special property transfer tax or VAT (Value added tax).
The sale of newly built real estate property is the subject of the VAT by the special VAT rate of 10% of the sale price.
The sale of the existing real estate property is subject to a special property transfer tax of 2.5 % of the sale price. Legally, this tax is burden for the seller who has to report the transaction to the competent tax authority within 30 days from the notarization of the contract. The tax authority will determine the tax amount. The tax is due within 15 days after the tax authority issued a tax order.
8 - At what point can the new owner take possession of the property (handing over of keys)?
That is on contracting parties to agree, meaning that there is no compulsory moment in which the new owner is authorized to take possession of the property.
In most cases, the possesion of the property will take place immediately after the purchase price has been paid to the seller.
9 - What is the procedure for publication of the sale agreement?
The legal effects of a real estate purchase agreement, that is transfer of the property to the buyer, will arise by registration of the buyer as a new owner of the property into the Cadastre land register.
That means that the transfer of ownership is final not at the moment of the signing of the contract but at the moment of the registration of the buyer as a new owner of the property in the Cadastre land register.