To the question about whether it would be legal to establish a construction right onto agricultural land before the change of its use, our answer in general is ‘yes’.
Our arguments in this direction are the following:
Law on Ownership and Use of the Agricultural Land
Law on Ownership and Use of Agricultural Land (LOUAL) is the general statute that regulates the use and the change of use of agricultural land. According to Article 25 of the LOUAL, the properties of municipalities in the common land and pastures shall be public and may be declared private municipal property in case of change of use of the common lands and pastures under the order of the Law of Municipal Property in the determined in para. 3 cases.
In Article 25 (3) of the LOUAL, the hypotheses are indicated, in which the exception is the permissible change of use of agricultural land, public municipal property-pastures and common land, namely for:
‘’1 construction of technical infrastructure entity within the meaning of the Spatial Planning Act
2 (amend. SG 16/03) investment projects, receiving a certificate for investment Class A or Class B or for an investment project under the Investment Promotion Act, when it has been requested during the project certification.
3 (amend. SG 62/10) creation of new or expansion of the construction borders of existing urbanized territories (settlements and settlement formation), as well as creation or expansion of the borders of separate regulated land properties outside them;
4. investment projects, related to socio-economic development of the municipality;
5 (new- SG 16/10) other cases, specified by law. ‘’
It is obvious that the change of use is permissible for pastures and common lands, which were public municipal properties, if the aim is to build investment projects, related to the socio-economic development of the municipality.
Furthermore, Article 25(4) indicates that in the above cases on the common lands and pastures limited property rights and servitudes can be established. The fact that the LOUAL provides that ‘common lands and pastures’ in the cited provision, means that it allows the foundation of limited property rights and servitudes on them before the change of its use. Otherwise, the legislator would not use ‘common lands and pastures’ to design the real estate on which the rights are established. In addition, after change of its use, these lands are not designated/named in this way.
Finally, in the support of the above, Art. 25 (7) explicitly indicates that the change of use of common lands and pastures for the needs of both companies and individuals is allowed after the limited property rights that have been established in favor of the person under para. 4. In order to proceed in the procedure for the change of use, it is necessary the limited property rights to be established.
For full exposition, it should be noted that the LOUAL does not regulate at all the procedure for the change of use of meadows as a type of agricultural land. Therefore, for meadows the general regime for the change of use, provided for in the law is applicable – LOUAL.
Law for Preservation of the Agricultural Lands and Rules for Implementation of the Law on Ownership and Use of Agricultural Land
According to Art. 18 of the Law above, the owners of farm lands can request determining and approval of sites and a change of the designation of the land, whenever they need it for the construction of objects, not related to the use of the land according to its designation.
According to Art. 29 of the Rules above, when regulating the procedure for change of use indicates that not only the owner, but also the person who has the right to build in someone else’s property (the holder of the construction right), presents an explanatory note stating certain facts and circumstances. This is another argument in favour of the admissibility for the establishment of limited property right to construction before the use of the land is changed.
Finally, Art. 30 of the Rules indicates that when applying in a form by the persons under Art. 18 and 19 of the Law on Ownership and Use of the Agricultural Land for approval of a site or route for construction and/or expansion of the site on agricultural land, among the documents to be submitted are a copy of the document for property or a preliminary contract for establishing a construction right on the land. Again, when regulation the issues, regarding the change of use, the legislator has allowed the applicant to be also the holder of a limited right to construction or a person who is a party to a preliminary contract for the same.
In conclusion, the legality of the established construction right is regulated by the Property Act and it is not bound by the possibility of the acquirer of the construction right in a property or whether he will exercise this right. The status of the land on which the right is established, the permission of the specific construction are questions regarding the applicability of the established construction right and do not affect its validity.
Otherwise, any establishment of construction right before obtaining a permission for construction, regardless of the type of land, would be invalid. This is another argument that the establishment of a construction right on agricultural land before the change of use is legal.
Based on the above, we believe that the establishment of a construction right on agricultural land before the change of its use is valid.
