Kosovo Property Rights Program (PRP) Report: Informality in the Land Sector – The Issue of Delayed Inheritance in Kosovo

Data from the Kosovo Cadastral Agency (KCA) indicate that approximately 30% of all property rights in Kosovo are registered in the name of deceased rights holders. Even this figure could be a low estimate. Unofficial data from the Register of Unpermitted Construction indicate that up to 50% or more applicants seeking to formalize rights in unpermitted buildings cannot demonstrate rights in the land upon which the buildings are constructed because the underlying parcels are registered in the name of deceased rights holders. Rights remain registered in the name of deceased persons because inheritance proceedings have not been initiated to formally transfer property rights from the deceased to his or her heirs.

A National Baseline Survey on Property Rights conducted in 2015 found that 50% of the respondents consider that rights in property are rights possessed by their family without having gone through inheritance proceedings; while 58% believe that property rights are based on court decisions and 49% cited duly executed contracts as constituting property rights. It is not surprising that 57% of respondents in the same survey reported that their birth family had never initiated an inheritance proceeding.

If government initiatives encouraging citizens to register their rights in property and to regularize unpermitted constructions successfully change Kosovars’ attitudes and behaviors about formalizing rights in property, there will likely be an increase in the number of inheritance proceedings initiated. The current legal framework governing uncontested inheritance claims contemplates that inheritance proceedings are initiated shortly after the death of the decedent (immediate inheritance proceedings). In practice, however, Kosovars have not initiated inheritance proceedings in a timely manner. As a result, a significant percentage of proceedings moving forward will be initiated long after the death occurred (delayed inheritance proceedings).

These two types of proceedings are distinguished by the length of time that has elapsed from the occurrence of death until the initiation of proceedings. During the intervening years between the death of the rights holder and the initiation of (delayed) inheritance proceedings, it is not uncommon for the number of descendants of the rights holder (potential heirs) to have grown to thirty or more. It is also not uncommon for some of the potential heirs to have taken possession of the deceased’s land parcel, constructed their homes on it and exercised de facto rights over the property.

Uncontested inheritance proceedings comprise a two-step process: review by a court or notary of the potential heirs’ documents and issuance of a decision or act verifying their rights to inherit; and the registration of the verified rights in the Municipal Cadastral Office (MCO). For the government’s formalization initiatives to have an impact, uncontested inheritance proceedings and property rights registration processes must be improved to make them more streamlined, efficient, predictable and affordable, to ensure that citizens already predisposed not to formalize their property rights do not encounter further disincentives to doing so.

The purpose of this report is to critically assess provisions in the legal framework governing uncontested inheritance claims and the registration of property rights to identify potential options for making these improvements. The report also assesses the practices of both courts and notaries to identify and propose potential approaches for strengthening due process safeguards to ensure that all potential heirs, and especially women, can fully exercise their rights to inherit property. Findings from these assessments are then applied to the four most common scenarios or “fact patterns” emerging from delayed inheritance claims to inform recommendations for developing new procedures responsive to the circumstances unique to these claims to help increase efficiency, reduce disincentives to formalization and strengthen due process safeguards.

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