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10 Persp. L. Pub. Admin. 81 (2021)
Establishment and Acquisition of the Right of Real Servitude in Immovable Property according to the Legislation in Kosovo

handle is hein.journals/perbularna10 and id is 730 raw text is: ESTABLISHMENT AND ACQUISITION OF THE RIGHT OF REAL SERVITUDE IN IMMOVABLE PROPERTY ACCORDING TO THE LEGISLATION IN KOSOVO Assistant and doctoral student Kastriote VLAHNA' Regular professor Hajredin KU I2 Abstract Servitude as a real right over a foreign thing is known, since the first laws written, as a right not so favoured by the owners of the thing. Failure to favour comes from the fact that the owner of the thing is restricted the right to exercise full right over his thing by another entity, whether natural or legal person. The law of the state recognizes the right of servitude and concretizes it as a restriction of the right of ownership, only in those cases when there are no other solutions. The important thing about the right of servitude is how to create this right and if it is created then what are the legal rules for gaining this right. Therefore, based on the importance of creating and gaining the right of servitude, in the paper I will define how the law of the state of Kosovo determines the creation of real servitude and in addition to creating how this right should be acquired, and also by looking at the implementation of legislation in practice through the case viewed in the Cadastral Status. Keywords: Property Servitude, Creation of Servitude, Aquisition of the Servitude, Legislation, Cadastral Status Practice JEL Classification: K15 1. Introduction Servitude as a real right over a foreign thing, is considered as an older right than other real rights, even from the right of ownership, although in the laws it is written as a right and known to the public since the first laws written, but not before. As nowadays, the positive law in force defines in the provisions the right of servitude as well, and considering it as a basic right, as much as the right of ownership, but by distinguishing it from the right of ownership since as a right the holder acquires it over the foreign thing, and can never have the authorizations, which he can have on a thing considered to be the owner. If you are the holder of the right of servitude, then by law you have the authority to use the other's thing, to maintain it, but you can never alienate (transfer-sell) it to other persons, since the right of servitude is regarding the ownership of the thing and that the right of servitude is transferred only in case the ownership of the thing is also transferred. The important thing is how this right of servitude, especially in immovable property, can be constituted (established). It is a debatable issue, but according to the positive law in the state of Kosovo, it is emphasized that initially the right of real servitude must be created through a legal title (iustus titulus) and, then to gain this right it must be registered in the real estate registers (modus aquirendi). The creation and acquisition of real servitudes is a debatable issue from the legal doctrine, from which two divided opinions derive, thus thinking that the right of real servitude can be created and acquired at the same time is the opinion of one doctrinal group, while the other doctrinal group thinks that the right of real servitude in immovable property must be acquired through a legal title created by legal work, the decision of a state body or by law. And in addition to the legal title, it must also be registered in the immovable property registers. Such thing is determined by the Law on Property and Other Rights in Kosovo, and also through this paper I clarify that first the right of real servitude must be created and then acquired, and never in any case creation and profit to be the same ' Kastriote Vlahna - doctoral student at the University Hasan Prishtina Pristina, Kosovo, Department of Civil Law; full time assistant in the field of civil justice, Faculty of Law, University of Prizren Ukshin Hoti, Republic of Kosovo, kastriote.vlahna@uni- prizren.com. 2 Hajredin Ku i - full professor in the field of law of private law, Faculty of Law, University of Pristina 'Hasan Pristina', Republic of Kosovo, hajredin.kuci@uni-pr.edu.