UNMIK/PR/405
PRESS RELEASE - 6 November 2000
REGULATION ON RESIDENTIAL PROPERTY CLAIMS COMES INTO FORCE
The Special Representative of the Secretary General has signed UNMIK
Regulation 2000/xx on Residential Property Claims. This new
regulation allows work to start on the more than 700 claims which already
have been made for the loss of rights to apartments and houses in the
Pristina region. Progress in dealing with residential property
claims is seen as an important issue in the quest to bring stability to
Kosovo. The regulation provides the legal machinery to bring to a
halt the numerous illegal occupations of residential property, which have
taken and still are taking place throughout Kosovo.
Those who
may lodge claims include persons who, because of discrimination during the
1990s, lost their occupancy rights to apartments; those who could not have
ownership registered in their own names; or those who were the owner or
the occupancy right holder of residential property before 24 March
1999 and since then have lost the possession.
The Regulation sets a deadline of 1 December 2001 for the submission of claims.
In order to protect claimants who were subject to discrimination, the regulation places a temporary ban on the sale of certain apartments. These are apartments which were purchased under discriminatory law by individuals who were not the occupancy right holders prior to 23 March 1989. Sales in breach of the Regulation are null and void.
Owners and occupancy right holders who have no intention of utilizing their houses or apartments may request temporary internationally supervised administration of the property. The property will then be used for displaced persons who require temporary shelter on humanitarian grounds.
The Regulation also provides rules of procedure for the two institutions tasked with dealing with these claims. They are the Housing and Property Directorate (HPD) and the Housing and Property Claims Commission (HPCC). The HPD receives and investigates claims lodged with it and tries to settle the claims through mediation. If a settlement is not reached, claims are referred to HPCC, which will make a final adjudication.
Persons directly affected by claims will have a right to take part in the legal proceedings, provided they give timely notification of their interest.
Persons wishing to lodge claims or take part in proceedings relating to
claims must contact the Housing and Property
Directorate.
THE MAIN PRINCIPLES
Any property right which was validly acquired according to the law applicable at the time of its acquisition remains valid, notwithstanding the change in the applicable law. The Regulation clarifies the rights of owners who acquired property under post-1989 laws. Property rights which were validly created remain valid, unless the HPCC decides that the property was acquired on the basis of discrimination.
Any person who lost residential property after 1989 as a result of discrimination has a right to restitution in kind or compensation. The Regulation provides a mechanism to restore or compensate for the property rights of the pre-1989 occupancy right holders who were subjected to discriminatory loss of their rights.
Any informal transaction between 24 March 1989 and 13 October 1999, which was based upon the free will of the parties, is valid and can be registered on the basis of an order from the HPCC. The Regulation validates by force of law any voluntary transactions of real property, which were illegal solely by virtue of the discriminatory law and practice, and enables the purchasers to register their rights in the cadastral files.
Any refugee or internally displaced person (IDP) who has lost possession of their residential properties has a right to return to their properties or to dispose of them in accordance with the law. The regulation affirms and emphasizes an already existing right, and provides a strong legal basis for the return of refugees and IDPs. It is on basis of this part of the law that illegally occupied houses and apartments can be reclaimed.
Restitution and Compensation
Restitution in kind can be granted to persons who lost apartments due to discrimination, except where a third party purchaser has acquired the property in good faith. There are three scenarios;
Claims by a pre-1989 occupancy right holder against a post-1989 occupancy right holder. Persons who were allocated apartments that were taken from pre-1989 occupancy right holders on the basis of discrimination are the direct beneficiaries of a discriminatory policy. Where the individual remains only an occupancy right holder, rather than owner, the HPCC may cancel the occupancy right and return the apartment to the victim of discrimination.
Claims by a pre-1989 occupancy right holder against a post-1989 owner. The Regulation provides for restitution in kind, subject to the payment of compensation to the owner. Where the post-1989 occupancy right-holder subsequently purchased the apartment in the privatization process and became the owner, s/he is entitled to compensation for the direct financial loss, i.e. the purchase price and cost of improvements to the apartment. In this case, the claimant will be given the opportunity to purchase the apartment on the same terms as were offered under the privatization scheme. The claimant has the benefit of receiving the apartment as the owner and the proceeds will be used to compensate the post-1989 owner.
Claims by a pre-1989 occupancy right holder against a bona fide third party purchaser. The Regulation provides means for compensation in lieu of restitution in kind. If the current owner of the apartment was not the direct beneficiary of the privatization scheme, but purchased it from an individual, then s/he is protected from losing the apartment. The claimant will be given compensation in lieu of restitution in kind. Compensation need not be at full market value, or paid in cash, or payable immediately. HPD will issue a certificate indicating the value of the claimant’s loss through discrimination. Such a certificate will entitle the claimant to compensation, if and when public funds are made available for this purpose. The amount and form of compensation will be determined at the appropriate time.
Protecting Refugees and Internally Displaced Persons
Of the properties abandoned by refugees and internally displaced persons, many are now occupied by families whose own homes are destroyed or who have been displaced from areas currently not accessible for security reasons. However, many illegal occupants do not have a genuine housing problem; they have moved to the major populated centers to take advantage of economic opportunities and the availability of vacant housing or simply use abandoned apartments for criminal activities.
The HPD has been given wide discretion to enable it to take a practical approach to the enforcement of decisions. It will be strict in evicting illegal occupants. However, humanitarian need for housing will be given attention.
The Regulation provides a scheme for the temporary administration of abandoned residential property. One of the main purposes is to protect the rights of owners and occupancy rights holders who have left their properties and apartments behind.
The procedural and evidentiary rules governing the HPD and HPCC represent a balance between the need to accord procedural guarantees to the parties and the need to provide a rapid and effective remedy in a situation of mass population displacement.