Uređenje upravljanja korištenja zajedničkom stvari u vanparničnom postupku Bosne i Hercegovine
Regulation of management and use of common property in non-contentious proceedings of Bosnia and Herzegovina

Summary/Abstract: This paper analyses the procedure for regulating the management and use of co-owned property under the law of Bosnia and Herzegovina, with particular emphasis on its legal nature, its relationship with agreements between co-owners, and the procedural issues arising in judicial practice. The paper proceeds from the position that this procedure is subsidiary and temporary in character, since the court intervenes only where the co-owners are unable to regulate the management or use of the co-owned property by agreement. In doing so, the court’s decision does not alter the proprietary structure of co-ownership, but merely regulates the manner in which the existing co-ownership powers are exercised. Special attention is given to agreements between co-owners concerning the use of property, particularly to the issue of their effect on legal successors, as well as to the need for clearer statutory regulation of the form and publicity of such agreements. The paper also examines disputed procedural issues, including the active standing of a co-owner who is not in factual possession of the property, the relationship between this procedure and the procedure for partition of co-owned property, and the issue of referral to contentious proceedings where the existence or scope of a right in the co-owned property is disputed. The analysis shows that the current statutory framework may enable abuses of procedural rights, particularly where the applicant is automatically referred to contentious proceedings without any prior assessment of the likelihood of the disputed right. For this reason, the paper proposes a solution under which the court would refer to contentious proceedings the interested person whose right it considers less probable. The paper further emphasizes the importance of the temporary regulation of relations between co-owners, as well as the functional transformation of this procedure into a form of quasi-partition in cases of inconsistency between the land registry situation and the factual state of possession. In conclusion, the paper highlights the need for a more precise statutory distinction between this institute and related institutes of property law, as well as the need to amend procedural rules in order to ensure more efficient and fairer protection of co-owners’ rights.

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