Real estate contracts can now also be done by lawyers
In accordance with the legal understanding of the Supreme Court of FBiH, for the legal validity of the contract on the transfer of rights to real estate (houses, apartments, land…) notary processing, i.e. drafting of the contract, is not mandatory.
Namely, 17.10.2022. year, this court received a request from the Municipal Court in Sarajevo, which, ex officio, based on the provision of Art. 61.a) proposed to resolve the disputed legal issue.
The disputed legal issue was:
“Do the signatures of contractors on contracts on the transfer of rights to real estate have to be certified at all, and if so, according to which regulation?
– If the provisions of the Law on Certification of Signatures, Manuscripts and Transcripts were to be applied, and considering the wording of Paragraphs 1 and 2 of Article 2, the following question read:
“Does that include the so-called supertrust (municipal administrative body and basic court) or is it enough for one of these two to perform the certification?”
The reasons for which the court addressed the request to resolve the disputed legal issue are that the Constitutional Court of the Federation of Bosnia and Herzegovina in its decisions no. U – 1510 from 2.12.2015. and U – 22/16 of 6 March 2019. declared unconstitutional certain provisions of the Law on Real Rights and the Law on Notaries, and obliged the Federation of Bosnia and Herzegovina to harmonize the regulations within a certain period, i.e. amend or supplement the aforementioned Laws.
The legal interpretation of the Supreme Court of the Federation of Bosnia and Herzegovina stated: “Signatures of contractors on contracts on the transfer of rights to real estate must be certified either by a notary or by a court as a condition of validity for entry in the land register”.
“Therefore, it is true that the Real Estate Purchase Agreement, Lifetime Support Agreement, Real Estate Gift Agreement, and other contracts whose subject is the transfer and acquisition of ownership or other real rights on real estate, can be drawn up by a lawyer in written form, and then that the signature on the contract is certified by the court, and such a contract can be implemented in the land register (without notarization of the contract)”, they told the Akta.ba portal from the Prnjavorac law office.
The legal understanding of the Supreme Court of Bosnia and Herzegovina is the essential filling of the legal gap created by the decisions of the Constitutional Court of the Federation of Bosnia and Herzegovina no. U – 1510 from 2.12.2015. and U – 22/16 of 6 March 2019. years.
“At the moment of the publication of the verdict of the Constitutional Court No. U-22/16, for subjects of law in the Federation of BiH there is no longer an obligation to draw up legal transactions in the form of a notarized document, but there is a notarization of the signature on a private document, which still remains a private document and the notary is not responsible for its content, with the fact that the notary certification has the probative force of a public document about the facts testified to in them. In practice, the notary did not want to certify the signatures on the Contracts, and therefore no one but the notary could still make Contracts on the transfer of rights to real estate”, they explained to us, adding that until now, regardless of the decisions of the Constitutional Court mentioned above, only a notary could draw up contracts on the transfer of real estate, and now lawyers can do it too.
REAL ESTATE TRADE LAW
Previously, the Law on the Transfer of Immovable Property stipulated that the contract on the basis of which the right of ownership of immovable property is transferred must be drawn up in writing, and the contracting party’s signatures must be certified by the competent court. With the entry into force of the Law on Real Rights (“Official Gazette of F BiH” No. 66/13 and 100/13), Article 371, item 4., the Law on the Transfer of Real Estate has ceased to be valid.
Based on everything, it was established that the contracting parties must conclude the contract on the transfer of rights to real estate in writing, and for legal certainty and possible legal consequences, they must have their signatures certified by a notary or a court.
This legal situation (until the law is harmonized by the Parliament of the Federation of BiH) is the closest to the solution that existed before the introduction of the notary service, when a qualified written form of contract was prescribed for the sale of real estate, and the signatures of the parties had to be certified by the court.