The procedure for the establishment of the land to which the property belongs is regulated in Slovenian law in Chapter IV of the Act on the Establishment of Elevated Ownership of Certain Buildings and on the Establishment of the Land to Which the Property Belongs (ZVEtL-1), in Articles 41 to 56.

The procedure for establishing the land to which the land belongs is a non-adversarial preliminary procedure, which is less formalised than litigation. The court has more inquisitorial powers, as it must ex officio collect the most important evidence (expert witnesses, administrative and zoning documents). In the procedure, the ownership of the land is not newly acquired, but, with the aim of regularising the real estate registers or bringing them into line with the actual situation, the actual position of the property is only established retrospectively, and the applicants’ legally acquired property rights are protected.

Proceedings for the establishment of the land to which the land to which the land is to be established may be initiated if the building to which the land to which the land is to be established was built before 1 January 2003 and if the owner of the building does not yet have a registered right in the land register to the land to which the land is to be attached.

The appurtenant land is that land which was directly intended or necessary for the regular use of the building and which became the property of the owner of the building on the basis of the regulations in force before 1 January 2003, such as, in particular, the regulations on the ownership of immovable property held in community ownership or the regulations governing the rules on the consequences of building on someone else’s world, the rules on the ownership of terraced property and the rules on the attachment of rights in land to rights in the building. Commonly owned land is that land which was directly intended or necessary for the regular use of several buildings at the same time and which, by virtue of the regulations referred to in the preceding paragraph, has become the property of the owners of those buildings.

In determining the extent of the land involved, the court must take into account, in particular: 1. which land was planned as directly intended or necessary for the regular use of the building in the planning documents or specified in the administrative permits on the basis of which the building was constructed, or specified in the individual legal acts on the basis of which the building or parts of it were legally traded, together with the supporting documentation, such as design solutions, investment documents, contract price calculations, records of the determination of the value of the apartments, etc., 2. which land in relation to the building constituted access routes, driveways, parking spaces, bin spaces, play and rest areas, lawns, land under atriums, etc., 3. the past regular use of the land, and 4. the criteria and conditions laid down in the planning acts that were in force from the time the building was built until the building owner acquired ownership of the land. Unless proven otherwise using the above criteria, the land to be considered as adjacent land is that land which has been designated by administrative decision as the functional land or building plot of the building. However, where it is not possible to establish with certainty whether a particular piece of land is the land belonging to one building or the land belonging jointly to several buildings, it is laid down that the court is to divide the disputed area as a matter of discretion, making an equitable assessment, in particular, of the proposals of the parties, the spatial conditionality and the functional relationship of the land to the individual building. As is clear from the case-law, for example the decision of the Ljubljana High Court of 6.6.2023, No. I Cp 292/2023, the criteria for determining the extent of the land to be annexed are set out in equal and case-by-case terms, and it is up to the individual case to determine on the basis of which criteria the court will be able to determine the extent of the land to be annexed, either by applying any of the criteria alone or in combination with other criteria. It is left to the court to weigh and balance the importance of all the relevant circumstances in each individual case.

Unless proven otherwise, the land determined by the court shall be deemed to be the property of the owner of the building. Unless the contrary is proved, the transfer of the ownership of a building shall be deemed to have transferred to the acquirer the ownership of the land adjoining such building. In proceedings for the establishment of the adjacent land, it shall also be established whether the ownership right of the owner of the building in the adjacent land or in part of the adjacent land has been terminated if the land registrar or another person has acquired ownership right therein by virtue of the rules protecting the bona fide commercial acquirer of title to immovable property, by virtue of a law or by virtue of a decision of a State authority. In proceedings for the establishment of an appurtenant land, the court shall not interfere with the rights of persons who have acquired rights in such land by virtue of the rules protecting the bona fide commercial legal title holder, by virtue of a law or by virtue of a decision of a State authority, unless the conditions for the establishment of a right of redemption under this Law are fulfilled or unless there is a dispute between the parties as to the non-existence or limitation of their right.

In proceedings for the establishment of the land to which the building belongs, it may also be necessary to establish the existence of a legal right of occupancy acquired by the owner of the building under the provisions of the Property Code on multiple occupants of the same immovable property.

The procedure for the establishment of the land to which the land to which the land is to be established may be initiated at the request of: 1. the person who has the ownership right registered in the Land Register in the building to which the land to which the land is to be established is registered, or in an individual part thereof, or in the land plot on which the building stands, if the building is not registered in the Land Register (the land-registered owner of the building), 2. a person who, applying mutatis mutandis the provisions of this Law on legal titles, demonstrates the legal basis for the acquisition or transfer of ownership of the building to which the land to which it belongs, or of an individual part thereof, is being determined (the acquirer of the building), 3. the community of the owners of the building to which the land is to be attached, 4. the land registry owner of the land which may be the land attached to the building (the land registry owner), if he or she demonstrates a legal interest, and 5. the municipality in whose territory the building is located, if he or she is likely to demonstrate a public interest.

In the proposal, the applicant must request a determination of the extent of the land attached to the building and the holder of the title to it. The land registry owner of the building, the acquirer of the building or the association of the owners of the building at any time may also request in the proceedings a declaration that there are no rights in rem or obligations in rem registered in the land registry in respect of the land attached to the building. The holder of an existing right in rem or a right subject to an obligation in respect of the land to which it is appurtenant, which has not yet been registered in the land register, may request in the proceedings that its existence be established. The municipality in whose territory the building is situated may, for the protection of the public interest which it is likely to have to demonstrate, assert in the proceedings all the claims which may be asserted by the participants under this Article. However, according to the uniform case law, e.g. the decision of the Ljubljana High Court of 11 September 2023, No. I Cp 412/2023, the court is not bound by the substantive proposal of the participant, but may regulate the relationship between the land and the buildings for which the relevant claim is made differently than the proposal, if the evidentiary procedure and the substantive law so dictate. Although the parties to the proceedings expressly propose that a particular piece of land constitutes individually appurtenant land to a building, that is no bar to a decision that it is jointly appurtenant land to two buildings.

The parties to the procedure for establishing the land concerned are: the applicant; the land registry owner of the building to which the land is to be determined, if the building is not owned on the basis of the land register; the community of the owners of the building to which the land is to be determined; the registered owners of the building to which the land is to be ascertained, if the building is under the ownership of the land registry and the conditions for the participation of the community of the owners of the building are not fulfilled, and the land registry owner of the land. If, after the commencement of the proceedings, the court finds that the land which is the subject of the proceedings may be common land or land belonging to another building, the land register owner of which is not yet a party to the proceedings, it shall, in accordance with the meaningful application of Article 5 of ZVEtL-1, decide that the land register owner of that building shall also participate in the proceedings as a party to the proceedings. The holder of a right in rem or a right subject to an obligation which is entered in the Land Register shall be a party to the proceedings for the establishment of the adjoining land, if the individual party requests that it be established that such a right does not exist in the adjoining land or if it declares its participation in the proceedings. Pending the decision on the establishment of the adjacent land, any acquirer of a building, the holder of a right in rem or a right under an obligation thereon claiming its establishment, and other persons demonstrating a legal interest in the proceedings, may apply to participate in the proceedings for the establishment of the adjacent land. The municipality in whose territory the building is located may, for the protection of the public interest, apply to participate in the proceedings if it is likely to establish the existence of a public interest.

In the decision on the determination of the land to be annexed, the court establishes the extent of the land annexed to the building and the existence of the building owner’s title to it. The court shall decide on the application for a declaration of the existence or non-existence of a right in rem or a right under an obligation in respect of the adjacent land, provided that there is no dispute between the parties as to the existence of such rights or as to the relevant facts, but shall otherwise stay the irregular proceedings in so far as they relate to the declaration of the existence or non-existence of a right in rem or a right under an obligation in respect of the adjacent land and shall decide that they shall be continued in accordance with the rules of civil procedure. A final decision of the court on the establishment of the land to which the land is appurtenant, given at second instance, may be subject to review in the manner and under the conditions laid down by the law governing civil litigation.