Article 69 of the Law on Planning and Construction (the “LPC”) bears a modest heading: “Special cases of forming a building plot”. Beneath it there are now 21 paragraphs, which govern far more than the plot: evidence of title to land, registration in the cadastre, easements, the use of agricultural and forest land, valuation in expropriation and relations with neighbors.
The result is, in effect, a law within a law: a special regime for an ever-wider range of structures, from power lines and wind farms to solar parks, electricity storage facilities and industrial complexes. That regime departs from several fundamental rules of property law, although none of them has been amended in the law in which it is laid down.
A law within a law
The range of structures is defined by reference to certain points of Article 2(1), together with electronic communications facilities. Beyond infrastructure and energy, it covers farm buildings on agricultural holdings, entire commercial and industrial complexes, and even ski tows, zip lines, alpine coasters and electric vehicle chargers.
For those structures, Article 69 has its own rules on plot formation (paras 1–6), the use of agricultural and forest land (para. 7), land above and below infrastructure (paras 8, 17–18), evidence of title and registration (paras 9–12), valuation in expropriation (paras 13–14) and relations with neighbors (paras 15–16, 19–21). Articles 21, 56, 135 and 148 of the LPC also refer to it, making it the hub on which the rest of the law relies.
Building without owning the land
Paragraph 9 allows a structure to be built on another’s private land on the basis of an easement agreement, a lease or the owner’s consent, or of an easement established by expropriation or by a court in non-contentious proceedings. The cadastral authority then “registers ownership of the structure only”, so that the building and the land become separate objects of ownership.
A departure from superficies solo cedit
Serbian law does not state this principle expressly, but it presupposes it. The rules of the Law on the Fundamentals of Property Relations (the “Property Relations Law”) on building on another’s land (Articles 24–26) always lead to the same outcome: in the end, the structure and the land belong to one person. The LPC itself, in Article 106, establishes the “unity of real property”, while Article 69 moves in the opposite direction.
Separating the building from the land is not new: for decades, the right of use of socially owned, and later state-owned, land and the lease of public construction land rested on it. What is new is that the separation now takes place on private land, between private parties, on the basis of a contract rather than a right in rem.
Article 69 thus introduces a building right in functional terms, but without any regime for it. The law does not say how long the separation lasts, what happens to the structure when the lease ends, whether the structure can be mortgaged on its own, or how the right is transferred. The Property Relations Law rules on building on another’s land were written for a builder without any legal basis, so it is an open question whether they apply to someone building under a contract with the owner.
A permit on a promise
Instead of any right at all, the investor may submit a statement undertaking to resolve title before the use permit is issued. The building permit is then issued on a promise. Works may be notified only for the part with resolved title (Article 148(8)), but the location conditions can no longer be challenged once the works have been notified (Article 56(8)).
The rule was initially designed for public linear and utility infrastructure, where there was practically no competition between investors. Today, when it also applies to private projects, nothing prevents several investors from submitting such a statement for the same plot. The law neither regulates that conflict nor gives priority to an investor who has, for example, financed the planning document or acquired rights over the rest of the land, so the conflict is in practice decided by whoever is first to sign a contract with the landowner.
Paragraph 11 follows the same approach: for extensions and works under Article 145 on structures registered in the infrastructure cadastre, a statement that the structure is a fixed asset suffices. Accounting records thus become evidence of a property right.
A statutory easement in favor of the investor
Paragraph 15 grants the investor, directly by law, a right of passage below and overflight above another’s land, above the underground parts of structures and below power lines and wind turbine blades. The owner and possessor must not obstruct the construction, maintenance and use of the structure, and no evidence of title is submitted and no plot is formed for that land (paragraph 16). The owner is burdened without a contract, without a decision and without registration.
During construction, the investor also has a right of passage and transport across neighboring land, and owners must tolerate the works, subject to compensation for damage which, failing agreement, is determined by the court (paragraphs 19–21).
What kind of right is this?
The Property Relations Law recognizes three ways of establishing a praedial easement: a legal transaction, a decision of a state authority and prescription (Article 51). The right under paragraph 15 arises in none of these ways. Nor is it a conventional praedial easement, since there is no dominant land; the holder is the “investor”, public or private, and it is not even clear whether the right passes to future owners of the structure.
It is a hybrid easement, with elements of both praedial and personal servitudes, closest to what legal doctrine calls an irregular personal servitude. The law does not regulate its content, scope, duration or termination. A contract could fill those gaps, but the investor, who needs no evidence of title, has no reason to conclude one.
Statutory restrictions on ownership are not new, but they have, as a rule, benefited the state and public enterprises. The novelty lies in the combination: the right arises ex lege, without an individual act, without registration and without compensation for the permanent burden, in favor of any investor, including a private one. Swiss law also requires owners to tolerate lines, but only where a line cannot be laid otherwise or only at disproportionate cost, against prior full compensation and with the option of registration.
Compensation and the constitutional framework
Under Article 58(2) of the Constitution, property may be restricted only in the public interest established by law, against compensation that may not be lower than market value. Article 69 provides for compensation only for damage during construction (paragraph 21), and none for the permanent overflight and passage under paragraph 15.
A defense might be sought in Article 58(3), under which the manner of using property may be restricted by law. It is difficult, however, to reduce the permanent toleration of another’s structure over one’s own land to a mere “manner of use”, particularly for the benefit of a private investor and without a public interest established in the individual case.
Since neither the right nor the burden is registered, a buyer of land cannot learn from the cadastral extract that a cable runs beneath the plot or that the blades of a neighboring wind turbine sweep over it. The principle of reliance on the cadastre is weakened as a result.
How Article 69 changes the logic of other laws
Article 69 amends no other law, but for its range of structures it disapplies their key rules:
| Law | General rule | What Article 69 does |
|---|---|---|
| Law on Agricultural Land | Arable land of cadastral classes I–V may not be used for non-agricultural purposes (Article 22), except with the ministry’s consent or an established general interest and payment of a fee (Article 23) | Construction regardless of class and without the ministry’s consent (para. 7); applying the LPC rules on subdivision raises the question of the ban on plots smaller than 0.5 ha (Article 27) |
| Law on Forests | Change of use of forest land is tied to an established general interest (Article 10) | Construction without the ministry’s consent (para. 7) |
| Property Relations Law | An easement arises by legal transaction, decision (against compensation) or prescription (Articles 51 and 53); building on another’s land leads to the unity of structure and land (Articles 24–26) | Easement directly by law (paras 15, 19–20); separation of structure and land (para. 9) |
| Law on Expropriation | An easement against the owner’s will is established by incomplete expropriation, subject to a public interest and compensation | Same effect directly by law (para. 15); special rules on the tax authority’s valuation (paras 13–14) |
| Cadastre regulations | Rights in rem based on a legal transaction are acquired by registration (Articles 33 and 52 of the Property Relations Law) | Registration of ownership of the structure only (para. 9); unregistered statutory burden (paras 15–16); new plots above and below public linear infrastructure (paras 17–18) |
The mechanism is a primacy clause. The transitional provisions of the 2014, 2018 and 2023 amendments to the LPC provide that provisions of other laws regulating the same matters differently “shall not apply”, except for regulations on environmental protection and, since 2023, on the rights and freedoms of national minorities. The Constitution, however, recognizes no hierarchy among laws. A primacy clause can disapply an earlier law, but it does not bind a legislature that later adopts a different rule, so every amendment to the Law on Agricultural Land or the Law on Forests reopens the question of which rule applies.
Conclusion
Article 69 began as a technical rule on plots and has become a parallel property-law regime for energy, infrastructure and parts of the economy. Its aims are understandable: faster construction of grids and renewables, without a single owner being able to block a project and without slow expropriation.
The price is legal certainty. The landowner does not always know what they must tolerate or for what compensation, the investor does not know what remains when the lease ends, the bank does not know exactly what it is taking as security, and the courts have no rules for the dispute that will inevitably arise.
The solution is not another paragraph in Article 69, but systemic regulation: a building right as a self-standing right in rem, which exists in German, Swiss and Croatian law and is proposed in the Preliminary Draft of the Serbian Civil Code; a statutory easement for infrastructure with mandatory registration and compensation; and alignment of sectoral laws instead of a primacy clause. In Swiss law, the building right is constructed precisely as an easement, so the hybrid easement under Article 69 could be a starting point. Until then, key rules of Serbian property law for the energy transition remain hidden in a single article of a construction law.
This article is general information, not legal advice. For an assessment of your specific matter, contact the Refine Legal team.