- Is a deed for municipal property with a reflected legal basis under paragraph 42 of the transitional and concluding provisions of the Act on amending and supplementing the Municipal Property Act (TCPAAS MPA), sufficient, without indicating in the deed the factual grounds for acquiring ownership, in order to accept that the property is municipal?
- In the case of disputing a presented act of municipal property, does the defendant—municipality—have to establish the factual grounds for the creation of the act, demonstrating all the elements of the factual composition under paragraph 42 TCPAAS MPA?
Paragraph 42 of TCPAAS MPA states: “Built and undeveloped plots and properties—private state property, allocated for residential construction and for public and urban improvement activities by municipalities, in accordance with the detailed urban plans in force at the date of the enactment of this law, shall transfer to the ownership of the municipalities.”
The Supreme court of cassation includes the responses to the above questions
“Consistently and without contradiction, the SCC has accepted in its practice that acts for municipal property are official documents created by public officials following a specific procedure and form, which certify the creation and changes in municipal property. In addition to the description of the property and its location in the act, both the legal and factual grounds on which the property became municipal property are indicated. This is so because the acts for municipal property do not have a constitutive effect, but only confirm the acquired ownership rights. If the factual grounds for acquiring the property are not stated in the act, in the case of a dispute, it is the municipality’s responsibility to establish when and on what grounds (nationalization, expropriation, transaction, confiscation, etc.) the property became municipal property before the deed for municipal property was drafted, since disputing the presented act for municipal property is a claim for a negative fact, the proof of which is made by proving the positive facts that exclude it.
To be used as an official certifying document with binding evidentiary force regarding the certified ownership right, the deed for municipal property should not only contain a description of the property and its location but also indicate the factual and legal grounds by which the municipality acquired the property.
This interpretation is also applicable to a deed for private municipal property with a reflected legal basis under paragraph 42 TCPAAS MPA, which provision is part of the regulation for the process of separating municipal property from state property, initiated under the Constitution of Bulgaria. It governs the transfer of ownership to municipalities of built and undeveloped plots and properties—private state property, allocated for residential construction and for public and urban improvement activities by municipalities, in accordance with the detailed urban plans in force at the time the provision came into effect. Ownership arises upon the realization of the factual and legal grounds for acquiring the property, and in the event of a dispute, the act for municipal property does not have independent evidentiary value regarding the property being municipal without the grounds for its establishment being proven in the case. The burden of proof for this is on the municipality.
Simply reproducing in the act for municipal property a general legal provision under which a certain category of state properties automatically becomes municipal by virtue of the law does not suffice to establish that the municipality holds ownership of the property, when there has been no full and principal proof of the facts.
