1. USAID PROPERTY RIGHTS PROGRAM IN KOSOVO (PRP) Role Constructive Notice Could Play to Formalize Property Rights in Kosovo
March 21, 2017

2. The National Strategy on Property Rights (NSPR)
The Government of Kosovo approved the NSPR on 18 January 2017;
The challenge faced by the Ministry of Justice (MoJ) was identifying the scope and scale of issues the NSPR needed to address to achieve property rights reform;
This required the MoJ with assistance from the USAID/Kosovo PRP to conduct evidence based research to inform its analysis.
PHOTO: PI COMMUNICATION AND USAID/KOSOVO PRP

3. Evidence gathered to inform analysis
MoJ and USAID/Kosovo PRP conducted participatory, rapid appraisals with courts, line ministries, government agencies, and civil society to begin to identify the challenges they faced to strengthen and enforce property rights.
148 participants and 23 working meetings, which resulted in 150 pages of analysis.
The qualitative information gathered pointed to widespread informality as a major impediment to secure rights to property in Kosovo.
In general, there was limited amount of empirical data informing the scope and scale of informality.

4. Available data related to informality
Evidence from a limited number of cadastral zones reconstructed with World Bank funding indicated 30% of land holders cannot register rights because the land remains registered in the name of deceased rights holders;
Anecdotal information that approx. 50% of applicants seeking to formalize rights in unpermitted constructions will be prevented from doing so because the land upon which the building is constructed is also registered in the name of deceased rights holders;
USAID/Kosovo PRP baseline study found that Kosovars perceive rights based on possession of family property as having similar legal effect as rights based on a court decision or formalized sales contract. It also found that 57% of the survey’s respondents reported their birth family had never initiated inheritance proceedings to transfer rights in property.

5. Key findings of DCM analysis
70% of cases for which no dispute existed were filed because there is no other mechanism to formalize the acquisition of rights.

6. Legal analysis
The available evidence pointed to two main sources of informality in Kosovo:
Properties were purchased without a written contract or have not been registered in the cadastre; and
Families did not conduct inheritance proceedings, and so property remains registered to deceased persons.
Detailed legal analysis served to:
Better understand the sources of informality and current available procedures in place to address them; and
Inform NSPR recommendations to address them in an efficient manner and in line with due process.

7. Constraints to efficient recognition of rights and providing due process safeguards
1. Contested claims procedures in courts must be followed to obtain formal of informal contracts even if there is no actual dispute.
Informal contracts often involve inter-ethnic transactions. Displaced Persons (DP) cannot be located and a “temporary representative appointed. Calls into question the principle of equality of arms, crucial to guarantee due process.
2. Civil Status Office lacks technical capacity to independently verify identity of all heirs in inheritance claims.
Female heirs may be excluded from inheritance proceedings.

8. The need to strengthen delivery of notice to parties in formalization processes
Many Kosovo citizens live in the diaspora or were displaced by the conflict.
They must be informed of formalization processes to provide them with information and knowledge to participate in proceedings.
Rights of parties with an interest in the claimed property could be usurped if they are not provided with sufficient notice to participate in the proceedings.

9. Solutions proposed in the NSPR
Establishment of an administrative adjudicatory body to more efficiently provide recognition of informal rights to property.
Publish notice of administrative adjudicatory and inheritance proceedings on a government-sponsored online Property Rights Information Portal (PRIP).

10. the Property rights information portal
The PRIP would provide notice of and information about all administrative adjudicatory and inheritance procedures.
It would make notification of claims more efficient and robust. This will increase efficiency and strengthen due process.
Kosovo’s internet penetration and usage makes the PRIP a viable solution:
Kosovo does not differ from other European countries in terms of internet usage:
84.8% internet penetration based on households;
76.6% internet penetration based on users;
9 wireless internet networks per kilometer on regional roads.
Source: MED, Kosovo IT Strategy (2016)

11. Internet is widely used by all ages and almost equally amongst men and women
Source: MED, Kosovo IT Strategy (2016); STIKK. Internet Penetration and Usage in Kosovo (2013)

12. MORE ROBUST NOTIFICATION THROUGH THE PRIP
Will make proceedings more transparent and increases the likelihood that all interested parties will be provided the opportunity to assert and protect their rights:
Provide citizens in the diaspora and displaced persons with greater access to information to protect their rights to property.
Will make it more difficult for families to conceal the identify of female heirs.

13. constructive notice
Provided more robust notice procedures are instituted to provide parties with sufficient notice, constructive notice can be applied to formalization proceedings.
Constructive notice is a legal doctrine that presumes all parties with an interest in the claim are provided with information and knowledge about the claim that can be acquired by normal means.

14. ROLE OF CONSTRUCTIVE NOTICE
Eliminates the need to prove actual delivery of notice
Allows for statutory deadlines within which parties must participate in the proceedings
Enables efficiency in the processing of administrative claims while ensuring due process safeguards.

15. CRITICAL CHALLENGES
Demonstrating that citizens have been fully informed about the need to diligently monitor the PRIP in order to protect their rights to property
Ensuring that the PRIP does provide a “normal means” for citizens to obtain knowledge and information about proceedings impacting their rights to property.
Monitoring formalization proceedings to ensure application of constructive notice and statutory deadlines does provide due process safeguards while promoting efficiency in claims processing.

16. Kosovo now has the strategy. What are the next steps?
For effective implementation of the NSPR, clear implementation guidelines, political will, and public confidence are key:
Action
The Action Plan details policy measures, activities, timelines, and indicators.
Political will
High-level Steering Committee established to coordinate and monitor implementation of measures and sectorial activities from line ministries and independent agencies.
Legitimacy
Close communication with citizens through public outreach campaigns.

17. In order to ensure that the NSPR remains the backbone of Kosovo’s policy priority framework
NSPR measures have been incorporated in the EU SAA Implementation Plan, National Economic Reform Program, and National Development Strategy.
A team of external legislative experts has been assembled to help the Government to keep with schedule of activities to achieve NSPR objectives and identify bottlenecks on the way.
Continuous donor coordination and alignment for greater results.

18. PHOTO: PI COMMUNICATION AND USAID/KOSOVO PRP
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