Some Issues Regarding the Ownership and the Evidence of Immovable Property Registration in the Republic of Kosovo.
The territory of Kosovo consists of 1,090,812 Ha, with approximately 2.2 Millions of cadastral parcels.
Because this region has been under the occupation of Turkish Ottoman Empire (it belonged to the Vilajet (region) of Kosovo), the legal ownership issues related to the immovable properties are regulated through laws based on Turkish legislation. During all this time, there has been no land surveying, and there was no cadaster at all. The property ownership was evidenced by a system of Tapi (Title), this being the system that was applied throughout the Turkish Ottoman Empire. Since no surveying measurements have been in place, the Tapi identifies the owner, the property, the residence of the owner, description of the parcel, boundaries and names of adjacent parcel owners (their names, dimensions of the boundaries, and additional characteristics relevant in making the identification of the property as clear as possible, especially in regard with the adjacent properties). The Tapi system in Kosovo was incorporated into the laws and regulations even by the countries that occupied Kosovo after the Balkan wars, (Montenegro, and the Kingdom of Serbia). Montenegro occupied the district of Gjakova, Peja, and Istogu, and Serbia, as decided in the Conference of Ambassadors in 1913 occupied the rest of the districts.
The first census of population and surveying of immovable properties, with the purpose of Colonization of Kosovo ?mostly of the fertile lands of the Plateau of Dukagjini (Rrafshi i Dukagjinit), started by Montenegro in the same year ( 1913).
After the First World War and the creation of the Kingdom of Serbia, Croatia, and Slovenia in 1918, preparations and quick actions started for the colonization of Kosovo by Serb-Montenegrin colonists. This process started in 1919 and ended at the beginning of the Second World War, in 1941.
The survey, in cooperation with the police forces and the geodesy specialists started in 1923, and ended in 1937. It had legal power after the final preparation of cadastral documents.
However, because the native Albanian population was not properly educated (was illiterate), they did not consider having the ownership documents (Tapi) for their immovable properties. Another reason for not requesting the Tapi was also the high property tax. Upon the survey completion, the land of Albanian owners, inherited generation after generation, was registered as state land for agriculture purposes, and was made available for colonization by different Ministries. Hence, the Albanian owners were deprived of the ownership and possession rights.
This process resulted in a decrease in the land fertility, in poverty for Albanians, and huge migration of population, mostly to Turkey, between 1927-1941. This was also the purpose of the regime of that time.
The next land survey was conducted during 1951-1955. Orthogonal and Polar methods were used in the territory of Gjakova, Peja, and Vushtria, , while in the territory of districts Mitrovica, Prizreni, Rahovec, and Ferizaj, the aerial photogrammetry was used.
The last land survey in the entire Kosovo territory was conducted during 1978-1982 via aerial photogrammetry. While this is true for the rural areas, only photographs exist for urban areas.
Later, upon transition towards more modern systems, the Electronic and Calculation Center "Gani Qabderbasha" in Prishtina, has written the program for the maintenance, conversion, and the administration of cadastral registration for the entire territory of Kosovo.
To this date, based on the legislation, the system of Tapi is still in place in Kosovo. Tapis?are the only legal documents that determine the immovable property ownership. However, in actuality (in the every day life) there are very rare the cases when owners would start the procedure for receiving the Tapi. For example, in the Commune of Gjakova, at the competent Court, there were issued less than 10 tapis, from the end of WW2 until the end of 1998. Therefore, the Tapi system is legally properly defined, but it has not been applied in practice.
Immovable properties are possessed through the system of Certificate of Possession (Fleta e Posedimit), which are issued by the Communal Directorate of Geodesy. Thus, the persons on whose names the property has been registered in the Cadaster Office, and based on the Certificate of Possession, could sell, inherit, rent out, etc., the immovable properties.
We should mention the fact that, in general, owners are not interested to request, and to keep the Certificates of Possession, and they usually get them only when they need to have a contract on the property. From the legal point of view, the Certificate of Possession is not a relevant document that could determine the ownership over a property, but they prove only the possession of property. However, there has been produced a view that such a Certificate could be considered as a proof of ownership, as well.
The procedures that a person should follow in order to get a Tapi are shown as it follows:
- Receive the Certificate of Possession from the cadaster office;
- Go through the procedure of proving the ownership through the Commune Council (Kuvendi i Komunes);
- The legal ownership is put on display for 1-2 months;
- The proper Court issues the Tapi, and also sends a copy to the Cadaster Office.
II. Geodetic Organization of Cadaster in Kosovo
In Kosovo, the State Geodetic Organization has functioned in about 30 administrative districts. Within these administrative districts, the geodetic cadastral evidence is managed by the Communal Directorate of Geodesy, which, depending on the size of the Commune, consisted of 10 to 15 trained surveyors (geodets) employees, while in Prishtina there were 30 employees. Along with the Director, heads of the sections, some time lawyers, there have been also other workers and also the finance staff. Districts, as the administrative units of geodetic work, had Cadastral Communes (Komunat Kadastrale)?Cadastral Zones. Districts had usually about 70-90 cadastral communes. The last land survey was conducted in 1978-1982, with the method of aerial photogrammetry. The scale of the maps is 1:2,500, and they also show the altitude.
On the level of all Kosovo, there was a Directorate with a Director, vice director, head of staff, inspectors, archivist, etc. The Directorate, as a separate organ of the Government of Kosovo, was responsible for the preparation and realization of the 5-year plans for the geodetic-cadastral works, while the Government of Kosovo approved the yearly plans. The Directorate contracted organizations and agencies about the geodetic work supervised the completion of these works. Once the Directorate approved the work, the results were then sent to the administrative districts for using and maintaining this information. Also, the Directorate sent the legal and technical changes to the Districts, regarding mapping and cadastral books. This Directorate was located in the building of the Government of Kosovo, with 8 offices, and the archive was located in the ground floor. The Directorate was responsible also for the Laws on land surveys, technical standards, regulations and guidance for communal services of geodesy, which were implemented after the approval from the Government and by the Parliament. The Directorate controlled the district work at least twice a year, both in the technical and legal aspects.
It's been agreed upon that, either in the same degree as before or may be with some small differences, on the Government level, Kosovo should have the geodetic service. They will draft laws, define technical standards, organize the geodesy and administration work in the districts, and contract the geodetic agencies on Republic or District level. The geodetic Service on the level of Kosovo should harmonize the works and the yearly plans or plans lasting a number of years, with the other services on the level of Kosovo, such as administration, legislation, urban planning, agriculture, forestry, hydro-economy, and education, etc.
The conduction of technical geodetic works has been carried on by the Organization for Geodesy and Photogrammetry in Prishtina with almost 100 employees, and the Organization for Geodesy in Gjakova, with over 20 employees.
Both these agencies should resume work immediately, because its experienced staff is needed more than ever to Kosovo at this time. It is well understood that these employees will also adapt to the developments of the market economy. The Organization in Prishtina has been specialized in the preparing maps via photogrammetry. We are almost sure that apart from the experienced staff, when we return we will not find any notes or working equipment, because they have been taken out of Kosovo long time ago. The building where this Organization used to work was under its ownership, so we could still use it when we return. Apart from basic instruments for aerial photogrammetry, we will also need other equipment for geodetic work, and we'll need to reorganize the center for the analytical processing of photogrammetric plans, in order to have the parcel areas calculated numerically.
The Organization in Gjakova has been specialized for geodetic works, especially for land surveying, which was usually made by qualified geodetic staff. As far as the equipment is concerned, they had some electro-optical distance measuring equipment, and each boundary point had numerical coordinates. There is an urgent equipment need for this Organization. This Organization will also need a building, because they used to rent one from a private owner.
The Communal Directorates in Districts used to work in offices that they rented, in the buildings of Communal Council, or even in separated locations. It is sure that, with the institutionalization of life in Kosovo, these offices should be located in the same place as with the Communal Council, because of the work relations with other communal services. As for equipment, we think that all these district offices should be supplied with enough complete geodetic equipment, because the equipment was not enough even before this last war, and we think that the equipment left after the war will be even less.
All records of the Directorate in Kosovo and in Districts are taken away almost one year before the war. We think that when we return to Kosovo, we will find only a few of these records.
What has for sure remained in Kosovo is the Parcel, with its boundaries in nature. In most cases, the user of the land generally knows exactly the area of the parcel in Square Meters (m2), because in the recent years the issuance of land certificates was needed for any other documented transaction.
Therefore, we have run into the following situation: we have the parcels and their boundaries in the field, which in general are all agreed among neighbors; we also have the land users, who if not exactly, know the approximate area of the parcel. The representatives of the village or cadastral communes also know the situation of the parcels. We are almost sure that we won't be able to find the state records of land parcels. We might find partial records from the other communal services, such as taxation, agriculture, water usage agencies, syndicates of tax collection based on the area of the parcel, and also in the houses, in the services for the use of the buildings, agencies that maintain these buildings, etc. As for forestry, we might find some data from the agencies that administer forests and pastures.
IV. Plans and Maps
Since plans in a 1:2,500 or 1:500 scale for built-up areas are not available, we think that it would be best and cheapest to conduct the aerial photogrammetry for the entire Kosovo, and then based on the photographs to prepare the plans. By using the aerial photography of parcel boundaries as marked by owners, we could count the parcels, and then could prepare the plans. The work for preparing the plans should go step by step, starting with the areas where it is most needed. This is because from the numerical records, the calculation of areas needs no improvement, and there is no need for continuous preparation of plans. For example, in all cities of Kosovo, the commercial centers are damaged, and for the owners to work, use, get credits, and pay taxes, they will need a state document. For the shop that is shown on photograph, and presented in continuity on the photo-sketch, we could prepare the plan and calculate the area, which, along with legal documentation could be used as the base for the use, possession, or ownership of that property.
For those parts of land that do not require a document, we could leave the preparation of plans and calculations of area for a later time, when we will be able to do it, such as for forests and pastures lands.
This way, we could prepare the documents for parcels, by priority from the state or from the individuals.
V. First Registration
For the first registration, we think that we should involve the geodesy experts, who have worked until now in that same territory. In this registration, we will include all the documentation that the user of the land has, and/or any other documentation that the surveyors will find from other previous administrative services, or working contractors that deal with the land use.
With regard to construction, we need to be cautious, because the construction that took place in the past was regulated from the violent state and its administration; they, without any regulated procedure have taken the land from one user and had given to others. Also, this work didn't follow the criteria for city planning, resulting in consequences.
Referring to the above, there is a Decision of the Republic of Kosovo, which forbids any transfer of property from social and public subjects to private subject.
VI. Property Rights
It is believed that, with the cooperation of land users, we could find out about some of the documentation related to the land, the objects constructed on that land, and the ones that were taken away by the administrative organs. In such cases, by combining both the testimonies and the expertise from geodetic and technical staff, we will continue with the administrative process in order to complete the documentation for these properties.
VII. The display
The period of display could be 30 days for housing and commercial/business buildings, and 90 days for agricultural land, reasoning that most of the owners are out of the country.
VII. Registration of Forests, Pastures, and Vacant Land
Regarding the use of forests, three cases have been seen:
- The user has documentation, which shows the area that he has actually been using.
- The user has the legal administrative documentation, but the user in fact uses another parcel of the same size.
- The user has the legal administrative documentation, but he does not use the parcel.
All these cases should be treated cautiously, in order to reduce discrepancies. It should be documented exactly what the user is using and what he will use.
VIII. Public Information
In Kosovo, where the land has been surveyed at least three times, the population is used to it and willing to cooperate with surveyors and experts; people are aware of the importance of documenting the land ownership. Even before, the TV, radio, newspapers and the public displays have been successfully used to inform the public. We think that even now we could use these methods but we need a better cooperation. While informing the public, we should be sensitive in targeting the population of Kosovo that is leaving outside Kosovo.
The professionals that have been working in positions should be trained in other countries that have similar problems, in order for them to share this knowledge with their colleagues.
In order to implement the property registration, along with the existing professionals and skilled staff, and the professional aid coming from foreign assistance, we need to organize the education system for geodesy and law, respectively the high school, undergraduate and graduate education. The geodesy high school of Gjakova, which has been closed for many years, should resume work. We should also start the work with the University of Geodesy, and continue with the Faculty of Geodesy.
XI. Legal Base
Regarding the implementation of land surveying and the registration of immovable properties, the proper institutions of Kosovo should prepare and then approve the Laws below, concerning the:
- Organization of geodetic service in Kosovo and in Communes;
- Law on Surveying and Registration of immovable properties;
- Law on Land Use;
- Law on Buying and Selling, and the respective transactions;
- Law on Land for Construction;
- Law on Land taxation.
Based on all the above, we could present an Action Plan as follows:
- Declare invalid all the legal and sub-legal provisions approved by the Yugoslav and/or Serb Parliament, and those of Kosovo Parliament, that contradict with the International Rights, and that are incompatible with the human moral, dignity, and personality.
- If we are able to collect the cadastral documents that have been taken away from the Communal Directorate of Geodesy, then we could continue with the existing practice, until we move from the existing system to the system of parcel books, something similar to what Albania is doing now.
- In case we don't collect the cadastral documents, then we should issue temporary documentation to the owners of immovable properties. By prioritizing, we should conduct local land surveys, which will then be incorporated in the general geodetic recordings. In the meanwhile, we should prepare as quick as possible all legal provisions, and have the professional staff, and locate funds for the aerial photogrammetry survey of the entire territory of the Republic of Kosovo.
Tirana, on June 17, 1999
Ilmi Zherka, Ass-Professor of Geodesy
Rifat Malazogu, Law School Diploma
Skender Tullumi, Geodesy Engineering Diploma
Translation of the Presentation of Kosovo Team prepared June 19, 1999