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Collected Papers of the Faculty of Law, University of Novi Sad

2017, vol. 51, No. 3 – 1, pp. 925–940

Language of the paper: Serbian

Overview paper

udk: 347.27

doi: 10.5937/zrpfns51-15474

Author:

Marina Jeremić, Ph.D. Student

University of Novi Sad

Faculty of Law Novi Sad

marina.dzepina@gmail.com

Ab­stract:

The paper analyzes legal institutes that deviate from the principle of accessibility to the termination of the mortgage. These are the legal norms prescribed in Art. 53 – 56 Mortgage Law. Regulations regarding disposal of unwritten mortgages, notation of the priority order and the prenotation of a new mortgage. In all three cases, it deviates from the general principle „prior tempore, potior iure“, than the settlement principle of claims in the order of mortgage registration, which excludes the sliding settlement rank. The owner of the real estate, thanks to the authority it derives from the above legal norms, actually disposes the creation of a new mortgage at the place of the existing mortgage. In particular, the author analyzes each institution separately, from the point of current legislation, practical applications and their legal nature. By negotiating these legal institutes, which are like a property hypothec, the credit ability improves and facilitates the refinancing of the loan to the owner, implicating they are extremely important in the economy. Institute of disposing of unwritten mortages has been analysed in details in this review as a specific institute which excludes the sliding settlement rank. However, almost without exception, negotiating a ban on disposing of unsecured mortgages, banking practice abolishes a fixed rate of settlement and makes the right to dispose of an unwritten mortgage unenforceable.

Keywords:

deviation from the principle of accessibility of the mortgage, disposal of unwritten mortgages, priority order notation, new mortgage prenotation.