Encumbrances (Section C)

MORTGAGE
Original name: HIPOTEKA
Definition of this right: A mortgage is a restricted right in rem over a property (lien) entitling its holder (creditor) to a certain claim and if it is not discharged, paid from the value of the property, regardless of who the owner is, by its due date, its present owner (debtor) must suffer it.
(Article 280. of Act on Ownership and Other Real Rights, Official Gazette, nr. 91/96, 73/00, 114/01, 79/06, 141/06, 146/08, 38/09, 153/09, 90/10 and 143/12).
Type of right according to national classification: “Mortgage lien”.
Observations: In the same way as for a thing, a lien may be established on several real properties as if all of them together were one and the same thing (joint, simultaneous mortgage).
Next to the thing itself, a lien is also established on all component parts of the thing, unless provided otherwise. (Article 294. Para. 3 and 4 of Act on Ownership and Other Real Rights, Official Gazette, nr. 91/96, 73/00, 114/01, 79/06, 141/06, 146/08, 38/09, 153/09,
90/10 and 143/12).

TRUST

Original name: FIDUCIJ

Definition of this right: One or both of the parties may ask the court to set a hearing and that the court at hearing in the record makes their agreement to take in order to ensure a certain monetary claims of insurance proponent transfer to insurance proponent on some things of the insurance opponent, or for this purpose some of his rights transfer on insurance proponent. Future claims can also be ensured.

If in the agreement ownership of the property registered in the land register is transferred, the agreement should contain a statement of the insurance opponent that he agrees that the land register based on agreement can do the transfer directly.

On the record basis and the statement of insurance opponent, parties may request the ownership transfer to the property registered in the land register with a recordation that the transfer has been done to secure certain claims of the insurance proponent.

Public notary act or private endorsed document with the appropriate content replaces the agreement. (Article 310, Para. 1, Article 312, Para. 1 and 2, Article 327, Para. 2 of Enforcement Act, Official Gazette, nr. 112/12, 25/13 and 93/14.)

Type of right according to national classification: “Transfer of ownership to secure monetary claims”

1.1. With respect to the mortgage liability, the Croatian mortgage system prepares in general one option:

a) Extracts include the global amount including all liabilities due to the loan; amount, interests and duration of loan (if it is mentioned in application for entry in land registry).

1.2. Regular LR information in this system also comprises ordinarily:

1. Contract or basis of obligation guaranteed by a mortgage (e.g. a loan).
2. Deadline of the loan or credit or other contract which is basis of the mortgage.
3. Deadline of the mortgage (if it is mentioned in application for entry in land registry).
4. Name of the mortgagee or creditor.
5. Name of the mortgagor or debtor.
6. Deed whereby mortgage was constituted or awarded.

1.3. With respect to the mortgage rank (preference of the mortgage in comparison with other mortgages or encumbrances), this LR system has the following criteria:

1. Mortgage rank depends on date of registration of the mortgage, so whoever may ascertain mortgage rank taking into consideration the information on the date of registration of the mortgage.
2. Information may indicate mortgage rank upon request of the interested parties.
3. Information may indicate mortgage rank upon request of the courts.

In this LR system these are the following:

EASEMENT

Original name: PRAVO SLUŽNOSTI

Definition of this right: A servitude is a limited right in rem over a property authorised its holder to use the property (servant property) in a certain way, regardless who the owner is while its present owner must suffer it or fail to use something due to it (Articles 174.-245. of Act on Ownership and Other Real Rights, Official Gazette, nr. 91/96, 73/00, 114/01, 79/06, 141/06, 146/08, 38/09, 153/09, 90/10 and 143/12). There are 2 types of servitudes: real and personal servitude.

A real servitude is a real right of the everyday owner of a piece of real property (dominant property) to use the real property of another in a specified manner (servant property) for the purposes of his own real property, and the everyday owner of which has to endure the sufferance or omit to take certain actions regarding his real property that he would otherwise be entitled to do.

Personal servitude is a real right granting a specific person the right to use the property of another in a specific manner (servant property), and obliging the everyday owner to such use.

Type of right according to national classification: “Restricted real right”.

Observations: There are many types of easements in Croatian Law, characterized by their purpose (real servitudes: servitude of passage, servitude of necessary passage, servitude of water supply, servitude of pasture, other rural servitudes, right to a window, right to have parts of one’s building and equipment on the servant property, right to direct liquids, servitude of rain drip / personal servitudes: usufruct, right of use and habitation right.

ENCUMBRANCE

Original name: PRAVO STVARNOG TERETA

Definition of this right: The encumbrance entitles its user over a real property that is being encumbered, based on its value, repeatedly be given things or perform the acts that are contained in that encumbrance (Article 246. of Act on Ownership and Other Real Rights, Official Gazette, nr. 91/96, 73/00, 114/01, 79/06, 141/06, 146/08, 38/09, 153/09, 90/10 and 143/12).

Type of right according to national classification: “Restricted real right”.

Observations: A piece of real property may have a real burden on it in favour of the everyday owner of a particular real property (dominant property) or the person having the right to build on it, or in favour of a particular person (Article 248. of Act on Ownership and Other Real Rights, Official Gazette, nr.91/96, 73/00, 114/01, 79/06, 141/06, 146/08, 38/09, 153/09, 90/10 and 143/12).

RIGHT TO BUILD

Original name: PRAVO GRAĐENJA

Definition of this right: The right to build is a limited real right on someone’s land, authorising the person having the right to have his own building on the surface of the land or below it, and the everyday owner of the land is bound to sufferance (Article 280. of Act on Ownership and Other Real Rights, Official Gazette, nr. 91/96, 73/00, 114/01, 79/06, 141/06, 146/08, 38/09, 153/09, 90/10 and 143/12).

Type of right according to national classification: “Restricted real right”.

Observations: Any right of construction shall also be entered as a charge against the land which it encumbers, with an indication of the number of the land registry file in which such right of construction has been entered in accordance with Paragraph (2) of this Article.

This information includes LR entries or notices related to restrictions decreed by judicial orders which mean either a claim on the property, or a challenge on the registered title, or an attachment of the property to debts as a result of judicial procedures, etc.

In this system:

a) Information on judicial restrictions or charges forms part of the regular land register extracts
b) Means of formal publicity ordinarily contains information about the judicial order that leads to the registration of notices or caveats; about if notices or caveats are temporary or indefinite entries, or warn about this issue.

LR information does not include orders of attachment or seizure from administrative authorities.

LR information does not include tax liabilities (fiscal burdens).