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«Law on Expropriation LAW ON EXPROPRIATION (Official Gazette of the Republic of Montenegro, No 55/00, 12/02, 28/06) I Basic Provisions Expropriation ...»

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In the case of establishing a lease or temporary occupancy of the land, the compensation shall be determined in the amount of lease on the market realized for the closest similar land.

The compensation shall be determined in the form of a one-time amount, during the period of the lease and temporary occupancy in equal time intervals, starting from the day of transferring land into a lease and the day of starting temporary occupancy.

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The compensation for preparatory activities shall be determined in the amount and in the manner prescribed by this Law for creating the lease, provided that the basis for calculating the compensation is the value of duration of preparatory works and time for restoring the original function or function of future purpose.

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The compensation referred to in Articles 49 and 50 of this Law shall not exclude the right to compensation of damage in accordance with the regulations on liability for damage.

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The parties may agree on the forms and amount of compensation, as well as on the transfer of immovable property that is being expropriated outside the procedure prescribed by this Law until the decision on expropriation becomes valid.

In the case of agreement, a further procedure on expropriation shall be terminated.

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After the decision on expropriation becomes valid, the competent administration body shall be obliged to, with no delay, schedule and hold the hearing for mutual determination of compensation for expropriated immovable property.

The expropriation user shall be obliged to submit a written offer on the amount of compensation to the body referred to in paragraph 1 of this Article within the deadline that cannot be longer than 15 days from the day when the decision on expropriation becomes valid.

The body referred to in paragraph 1 of this Article shall, without delay, submit a copy of the offer to the former owner of the expropriated immovable property, and shall obtain from the administration and other bodies and organizations a notification on facts that could be of importance for determining the compensation by mutual agreement.

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The following must especially be determined by the agreement on compensation for the expropriated immovable property: the form and amount of compensation, the deadline within which the expropriation user is obliged to fulfill his obligations, as well as obligations of the former owner, if they are contracted by the agreement.

The agreement on compensation shall be entered in the minutes, which must contain all data necessary for fulfilling the obligations of the parties.

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In the procedure before the competent administration body or before the competent court, the parties may reach an agreement about: giving another immovable property in ownership or co-ownership instead of the expropriated immovable property;

monetary amount of compensation; mutual additional payments of the difference in value of the immovable property; on transfer of expropriated facilities to another location as regulations allows; on the construction of access path; a passage and access roads, as well as other actions allowed by law.

Submission of Documents to the Court Article 56 (Official Gazette of the Republic of Montenegro, No 28/06) If the agreement on compensation is not reached in its entirety, within two months from the day the decision on expropriation becomes valid, the competent administration body shall submit a valid decision on expropriation, with all documents, to the court on whose territory the expropriated immovable property is located, in order to determine compensation.

If the competent body does not act in accordance with the provision of paragraph 1 of this Article, the former owner and expropriation user may directly contact the court for the purpose of determining the compensation.

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Personal easement and all real encumbrances, besides real easement whose execution is possible upon earmarked use of the expropriated immovable property, shall cease to exist on the expropriated immovable property on the day the decision on expropriation becomes valid.

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Mortgage created on the expropriated immovable property shall be assigned to the immovable property given into the ownership in the name of compensation or to another personal property of adequate value.

The property rights referred to in paragraph 1 of this Article shall be deleted from the cadastre of immovables at the proposal of the expropriation user.

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Article 58 (Official Gazette of the Republic of Montenegro, No 12/02) (Paragraphs 1 and 2 shall be annulled on the basis of the Decision of the Constitutional Court of the Republic of Montenegro).

Registration of ownership and other rights on immovables that are in the name of compensation given to the former owner shall be done on the basis of valid decisions on expropriation and execution documents on compensation.

Article 58a (Official Gazette of the Republic of Montenegro, No 28/06) Registration of ownership and other rights on expropriated immovable property shall be done on the basis of valid decision on expropriation and proofs of paid compensation.





The request for registration may be submitted by any party.

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In the procedure for expropriation and determination of compensation for expropriated immovable property, all documents and decisions are exempted from fee payment.

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The competent administration body shall keep the records on expropriation of immovables for the municipal territory.

The administration body competent for registration of rights on immovables (hereinafter: competent administration body) shall prescribe the contents and manner of keeping the records on expropriation of immovables.

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The procedure upon the proposal for expropriation, which has not been terminated by a valid decision until the effective day of this Law, shall be terminated in accordance with the procedures of the former law, except in the cases when subject of expropriation are business and apartment facilities.

The procedure for determining compensation for expropriation of immovable property where, until the effective day of this Law, the agreement on compensation is not reached, or valid court decision adopted, shall be terminated in accordance with provisions of this Law.

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On its effective day, this Law shall supersede the Law on Expropriation (Official Gazette of the Socialist Republic of Montenegro, No. 20/81 and 10/90).

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Note:

The Decision of the Constitutional Court of the Republic of Montenegro determining that the provisions of Article 3 and Article 58, paragraphs 1 and 2 of the Law on Expropriation (Official Gazette of the Republic of Montenegro, No 55/2000) are not compliant with the Constitution of the Republic of Montenegro The Constitutional Court of the Republic of Montenegro, composed of: president Nikola Vujanovic and judges: Bozidar Martinovic, Radojko Djuricanin and Sefko Crnovrsanin, on the basis of the provisions of Article 113, paragraph 1, item 1 of the Constitution of the Republic of Montenegro, Article 51, paragraph 2 and Article 56, item 1 of the Law on the Constitutional Court of the Republic of Montenegro (Official Gazette of the Republic of Montenegro, No 21/93), at the meeting held on the 12th of February 2002, adopted the

Decision

It is determined that the provisions of Article 3 and Article 58, paragraphs 1 and 2 of the Law on Expropriation (Official Gazette of the Republic of Montenegro, No 55/2000) are not compliant with the Constitution of the Republic of Montenegro, and that they shall be annulled on the day of publication of this decision.

This decision shall be published in the Official Gazette of the Republic of Montenegro.

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Pursuant to the decision of the Constitutional Court of the Republic of Montenegro, No 14/2001 from the 11th of December 2001, the procedure for evaluation of constitutionality of provisions of Article 3 and Article 58, paragraphs 1 and 2 of the Law stated in the disposition of this decision is initiated.

The Constitutional Court has determined, upon considering the contested provisions of Article 3 and Article 58, paragraphs 1 and 2 of the Law, at the meeting held on the 12th of February 2002, that they are not harmonized with the Constitution of the Republic of Montenegro.

The contested provisions of the Law prescribe the following: the owner, i.e.

ownership form on the expropriated immovable property (complete expropriation) is changed on the day the decision on expropriation becomes valid; the registration of ownership and other rights on the expropriated immovable property shall be made on the basis of a valid decision on expropriation, and the request for registration can be submitted by any party.

The Constitution of the Republic of Montenegro prescribes that law, in accordance with the Constitution, regulates the manner of exercising freedoms and rights, if it is necessary so in order to exercise them, and other issues of interest for the Republic (Article 12, items 1 and 4); the freedoms and rights cannot be violated (Article 16, paragraph 1); the ownership right is guaranteed and no person can be deprived of the ownership right and the ownership right cannot be limited, except when required Official Gazette of the Republic of Montenegro, numbers 55/00, 12/02, 28/06 Law on Expropriation so by public interest determined by law or on the basis of law, with the compensation that cannot be lower than the market one (Article 45); the Parliament adopts laws, other regulations and general acts (Article 81, item 2), and law must be compliant with the Constitution, whereas other regulation and general act with the Constitution and law (Article 107).

It can be concluded from the quoted provisions of Article 45 of the Constitution of the Republic of Montenegro that the ownership right is guaranteed and that no one can be deprived of ownership rights and the ownership right cannot be limited, except when required so by the public interest determined by law or on the basis of law, with compensation that cannot be lower than the market one. The Constitution, thus, guarantees the ownership right and only in exceptional situations it allows for the possibility of depriving of or limiting the ownership right, in the case when it is required so by the public interest determined by law or on the basis of law. While doing so, the owner of property whose ownership right is taken away or limited must be paid the compensation that cannot be lower than its market value. Therefore, the Constitution determines, in addition to the reasons for depriving of or limiting the ownership right, the minimum threshold for determining compensation for taken away ownership right or its limitation, as equivalent. The upper compensation limit is not determined by the Constitution. The intention is, therefore, not to place the former owner, by application of measures regarding taking away of the property, into less favourable condition than the one he was in before the application of such measures. In accordance with that, depriving of ownership right or limiting that right is inseparably connected with determining and payment of associated compensation, i.e. equivalent, the amount of which cannot be lower than the market price of the property on which the ownership right is taken away or limited. Therefore, in accordance with the evaluation of the Constitutional Court, determination and payment of compensation must happen prior to the transfer of ownership right or, at the latest, at the same time with the transfer of that right. On the contrary, the contested provisions of the Law enable that the expropriation user registers the ownership right on the expropriated immovable property on the day when the decision on expropriation becomes valid, thus depriving the former owner of that right prior to the payment of the relevant compensation for that immovable property, even before determining that compensation, if parties did not agree on forms and amount of compensation and transfer of immovable property prior to validity of the decision on expropriation. Therefore, the contested provisions of the Law are not in compliance with the Constitution of the Republic of Montenegro.

On the basis of the aforementioned reasons, it has been decided as stated in the disposition of this decision.

The decision on annulling the contested provisions of the Law and publication of this Decision is based on the provisions of Article 115, paragraph 1 and Article 116, paragraph 3 of the Constitution of the Republic of Montenegro.

No 14/2001 Podgorica February 12, 2002 President of the Constitutional Court of the Republic of Montenegro Nikola Vujanovic, signed

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