Text file: 9833.txt
author: beatty
downvotes: 0
end consideration date: 2019-02-11
id: '9833'
number comments: 3
number views: 911
proposal type: Competent authority response
response: "Response from the Ministry of Justice\nArticle 38(1) of the Land Register\
  \ Act (hereinafter: ZZK-1) stipulates that where a land registration permit authorises\
  \ the registration of a property right (except for independent parts of a building\
  \ in storey ownership), the permit must also be accompanied by a certificate of\
  \ the intended use of the land. Paragraph 2 of the same Article also requires that,\
  \ where the regulations governing the marketing of certain types of immovable property\
  \ require the consent or approval of the competent authority or a certificate from\
  \ the competent authority to the effect that such consent or approval is not required,\
  \ the permit shall also be accompanied by such consent, approval or certificate\
  \ if it is apparent from the certificate that the property is of that type. Examples\
  \ of this type of immovable property are agricultural land, forests and farms. Article\
  \ 19 of the Agricultural Land Act (hereinafter: the \"ALA\") provides that the transaction\
  \ of such immovable property is to be approved by the administrative unit and lists\
  \ exceptions to this rule. Article 22 of the Land Code then regulates the procedure\
  \ for such approval, which is either refused or granted by a decision, and a decision\
  \ is also taken that no approval is required. The last paragraph of the same Article\
  \ then expressly provides that the authentication of a signature on a land registration\
  \ permit may be effected only on the basis of such a final decision.\nAlthough Article\
  \ 22 of the CCL does not provide that the decision of the administrative unit must\
  \ also indicate that the land is agricultural or forest land, it is understandable\
  \ that this is the case. In such a case, it is possible to agree with the citizen's\
  \ suggestion that there is no need to attach a land use certificate in addition\
  \ to the approval decision or the decision that no approval is required. Nevertheless,\
  \ the following substantive arguments argue against such an approach (which should\
  \ be translated into a legal regime):\n Under such an approach, the notary would\
  \ only become aware of the land use designation if the seller of agricultural land\
  \ or forest land submitted a decision of the administrative unit. The notary's responsibility\
  \ to authenticate the signature on the land registration permit only in cases where\
  \ the parties fulfil the conditions laid down in special regulations such as the\
  \ CCL, which is based on Article 64(9) of the Notarial Act (hereinafter 'the Act'),\
  \ would thus depend entirely on whether the party submitted the administrative unit's\
  \ decision, or even obtained it in the first place. Since the CCL does not sanction\
  \ failure to obtain a decision for the purposes of legal transactions in agricultural\
  \ land, it is the notary who is the guardian of compliance with the legal conditions\
  \ for transactions in agricultural land. The fact that the land is agricultural\
  \ land and that the seller must therefore fulfil special conditions for the sale\
  \ must be brought to the notary's attention objectively and independently of whether\
  \ the seller has complied with the requirements laid down in the ZKZ for the approval\
  \ of the transaction, which he can do precisely by means of the certificate of the\
  \ intended use of the land. The land use certificate does not only contain information\
  \ on the intended use of the land, but also information on the existence of zoning\
  \ measures on the land, which is also the municipality's pre-emption right. Since\
  \ the zoning regulations, like the agricultural land regulations, provide for notarial\
  \ mechanisms as a mechanism for strict compliance with the obligations arising for\
  \ the seller from the fact that his land is subject to a special regime, the certificate\
  \ is also intended to inform the notary of the possible existence of a municipal\
  \ pre-emption right and to act accordingly. The certificate of land use is therefore\
  \ not only related to the question of whether the land is agricultural land, but\
  \ also has other purposes in notarial proceedings. In fact, a municipality's pre-emption\
  \ regime may also be established on agricultural land. If we were to follow the\
  \ proposal that, in order to submit a decision authorising the sale of agricultural\
  \ land or a decision that no such authorisation is necessary, it would not also\
  \ be necessary to submit a certificate of the intended use of the land, the notary\
  \ could notarize the signature on the land registration permit, as he would consider\
  \ that the conditions under the Land Code were met, but would not know that it was\
  \ also necessary to check that the conditions under the zoning regulations were\
  \ met.\nIn addition to the above substantive arguments, two further points should\
  \ be made:\n Pursuant to Article 5a of the UN, a notary is obliged to obtain information\
  \ or evidence on his own from official records kept by state authorities, self-governing\
  \ local authorities or holders of public powers, and may not request such information\
  \ or evidence from the parties. Since the certificate of land use is a certificate\
  \ from an official register, it falls under these provisions and the party is not\
  \ obliged to submit the certificate to the notary, i.e. there is no administrative\
  \ burden for him to obtain it. Article 38, last paragraph, of the ZZK-1 provides\
  \ that the notary may also access the computerised register of data on land-use\
  \ zoning and spatial planning measures electronically. The ZZK-1 thus relies on\
  \ the regulation under the regulations on spatial planning or spatial planning,\
  \ which provides for the establishment of a so-called spatial information system\
  \ containing the above-mentioned data. The fact is that this system is not yet operational,\
  \ but will be in place in the coming period, by which time this type of data retrieval,\
  \ either by clients or notaries themselves, will be a thing of the past.\n Response\
  \ from the Ministry of Finance\nThe case concerns the disposal of agricultural land,\
  \ where, inter alia, a tax receipt is required in order to arrange the transfer\
  \ of the property to a notary.  Thus, in the assessment procedure, it is also necessary\
  \ to obtain a decision on the approval of the transaction issued by the administrative\
  \ unit. The date of the approval of the transaction must also be entered on the\
  \ return, inter alia, where the transaction is one which the administrative authority\
  \ is required by law to approve.\nWe would like to clarify that, in accordance with\
  \ Article 7 of the ITA-2, the tax liability arises when the contract under which\
  \ the immovable property is transferred is concluded. Exceptionally, if the transfer\
  \ of immovable property requires a licence from a public authority or another legal\
  \ act, the tax liability arises upon the legal act becoming final, even if the contract\
  \ was concluded earlier. In the case of the sale of agricultural land, forests and\
  \ farms, the date of the final decision on the approval of the transaction (or the\
  \ certificate that no approval is required) issued by the administrative unit, pursuant\
  \ to the provisions of the Agricultural Land Act, shall be taken into account for\
  \ the purpose of determining when the liability arises.\nIn practice, as a rule,\
  \ taxpayers are already in possession of a final decision approving the transaction,\
  \ or a certificate that no approval is required, when submitting their real estate\
  \ turnover tax return. In the event that the taxable persons do not have such a\
  \ decision in their possession at the time of filing their tax return, the Tax Office\
  \ shall inform them that it will itself obtain the decision ex officio by means\
  \ of a written enquiry. In most cases, the taxable persons, in the interest of a\
  \ speedy assessment procedure, then obtain the decision themselves and submit it\
  \ to the tax authority.\nFinally, with regard to the question why FURS could not\
  \ directly consult the records of the authorisations issued by the administrative\
  \ units in this area and the final status, we would like to clarify that such records,\
  \ which would allow direct electronic consultation of the records of final decisions\
  \ on the authorisation of legal transactions, are not in place at the administrative\
  \ units, so such direct consultation is not possible. However, we agree that the\
  \ establishment of an appropriate record would speed up the procedure before the\
  \ tax authority."
response date: 2020-02-25
response due date: null
sent date: 2019-01-21
title: Land use certificate - administrative hurdle
upvotes: 14
url: https://predlagam.vladi.si/predlog/9833
