The subject of legalization can only be facilities that have been completed in the construction sense. Exceptionally, when the subject of legalization is a building, it can also be a building on which constructive works have been carried out.

The Law on Legalization does not apply to facilities for which a decision on a building permit has been issued, and which are used without a decision on a use permit. There are exceptions to this rule. If it is a facility built on the basis of a building permit, i.e. approval for construction and a confirmed main project, from which ones there were deviations during the execution of the works. In the event that it is not possible to issue a decision on the amendment of the building permit decision for such a facility in accordance with the Law on Planning and Construction, then such a facility may be subject to legalization. Also, if in the process of legalization under the previous law a decision on a building permit was issued, but not a decision on a use permit, the competent authority issues a decision on legalization, provided that no changes have been made to the facility except for ongoing maintenance.

The subject of the legalization cannot be facilities that are: 1) built on land unfavorable for construction (landslide, marshland, etc); 2) built or reconstructed from materials that do not ensure the durability and safety of facilities; 3) built on public purpose areas, that is, on land planned for the arrangement or construction of certain public purpose facilities; 4) built in the first and second degree of protection of natural property, the zone of protection of cultural property of exceptional importance, in the zone of sanitary protection of water supply sources, in a military complex, etc.; 5) built in the protective zone along the route of the radio corridor, on the propagation directions of directed radio signals between radio stations. There are exceptions to certain stated rules, where it is possible to pass a decision on legalization in case of obtaining certain consents or submitting additional evidence.

Initiation of the legalization procedure and visibility of the facility on the satellite image. The subject of legalization can be a facility for which a request for legalization has been submitted until January 29, 2014, if it is visible on a satellite image of the territory of the Republic of Serbia from 2015, as well as a facility for which no request for legalization has been submitted, but for which the construction inspector made a decision on demolition in accordance with the provisions of the Law on Legalization, provided that it is visible on the same satelite image. In the event that the construction inspector has not issued a demolition decision for the facility that is visible on the aforementioned satellite image, the party may submit a request for legalization in accordance with the law that is currently in force. One can conclude that the visibility of the facility on the satellite image of the territory of the Republic of Serbia from 2015 is the precondition for initiating the legalization procedure. On the other hand, demolition decisions on the basis of which legalization procedures have been initiated are not going to be executed until the finality of the decision on rejection or dismissal of the legalization request.

Number of floors and purpose of buildings. In order for the facility to be legalized, it must be in compliance with the valid planning document regarding the purpose and number of floors of the facility. However, there are certain exceptions to these rules. A facility can be legalized if it is determined that the purpose is within the compatibilities defined by the plan. Also, in the event that the facility has more floors than the number of floors prescribed by the valid planning document, a legalization decision can be made for it if it is in accordance with the decision of the competent local self-government.

In order to make a decision on legalization, it is necessary to prove the legal basis. This is often the most complicated part of the process, given the unresolved and complicated property relations on the cadastral lot or on the facility itself. According to the Law on Legalization, the ownership right on the building, i.e. the right of ownership, the right to use or the right to lease the construction land in public domain, as well as other rights prescribed by the Law on Planning and Construction as appropriate rights on construction land, are considered as the appropriate rights under the Law on Legalization. It often happens that a part of the facility is built on land that, for example, belongs to the city, and it is necessary to carry out the procedure of determining the land for the regular use of the facility and buy the cadastral lot from the city in addition to the legalization procedure. It also happens that the facility is located on several cadastral lots, so it is necessary to resolve property relations with the owners of the lots in question. As appropriate evidence of the legal basis, the Law on Legalization lists the following: for a facility built on land owned by another person, a legally binding court judgment establishing the right of ownership on the land; then there are contracts on the transfer of the right of use, that is, the purchase of land or the transfer, that is, the exchange of immovables, which must be certified in the appropriate form; contract for the purchase of a building or a building under construction certified in the appropriate form; legally binding decision on inheritance or status change; act of the Ministry of Defense on the allocation of "necessary accommodation"; as well as all other legal affairs on the basis of which the legal continuity of the land, building, or special part of the building can be determined in an unquestionable way.

Project documentation. In order to legalize the facility, the party in the proceeding must submit a report on the found condition, which contains the geodetic works elaboration as an integral part. It is very important to hire good experts for the preparation of this report, and the parties must also take these costs into account.

Finally, in order to pass a legalization decision, it is necessary to pay the legalization fee and file the tax return on the property tax for the illegal facility for the past five years. The amounts of fees have been significantly reduced in order to increase the legalization of facilities, which is in accordance with the intention of the legislator who prescribed that the legalization of facilities is of "public interest". The amount of the tax depends on the class, purpose and way of using the facility. The lowest amount of the fee that needs to be paid is 5,000.00 dinars, and this sum is requested for the legalization of facilities with a useful area of up to 100 square meters, while a fee in the amount of 3,000,000.00 dinars needs to be paid for residential and commercial buildings intended for the market, with a useful area of over 1,500 square meters and commercial buildings of over 1,500 square meters. Special categories are also exempt from fee payments. Thus, the fee is not paid by the owner of an illegally built facility intended for the residence of the applicant and members of his family household, if the applicant is a person with a disability, a single parent or a beneficiary of social assistance. After the legalization fee is paid, excluding exceptions, the party must submit the proof that the tax return for property tax for the illegally constructed facility for the past five years has been submitted. Upon fulfillment of all the above-mentioned conditions, a legalization decision can be rendered, a decision which the competent authority ex officio sends to the real estate cadastre, and thus the facility in question is finally introduced into legal flows.

If you need legal assistance regarding legalization, you can contact us at office@jovanoviclegal.com or +381 60 1851721.

Lawyer Aleksa Jovanović, Pančevo