Problem izbire pravne podlage pri odločanju o izbrisni tožbi zaradi sprememb zemljiškoknjižne zakonodaje

slovenian

2013

volume 68, issue 7/8

Narodna in univerzitetna knjižnica
(Obvezni izvod spletne publikacije)

Due to lack of clarity of the transitional regulation in the present Land Register Act (ZZK-1) the case-law raised the question whether it is possible in certain cases to govern a claim for removal from the land register by the provisions of the former Land Register Act (ZZK) even after the enforcement of ZZK-1. The case-law does not give a clear answer to that question. The article offers a solution that could provide an appropriate transition between the two land register acts. It distinguishes between the situation, in which a claim for removal is filed against a direct acquirer, and the situation, in which such a claim is filed against a further bona fide acquirer. In the case of the direct acquisition, the solution is based on the recognition of constitutional unacceptability of ZZK provisions, regarding such aqusition. The solution concerning a further bona fide acquirer is derived from the principle of trust in law, according to which it is necessary to adequately protect also an actual owner of the property, whose position has deteriorated with the enforcement of ZZK-1. Finally, the article examines the transition between regulations of a claim for removal before the latest amending act of ZZK-1 (ZZK-1C) and after it with reference to the position of an obligational right holder who is explicitly mentioned by the amending act ZZK-1C as one of the persons entiteled to file a claim for removal.

20.01.2017