Ograničenje autonomije volje kod prava raspolaganja neispisanom hipotekom i zadržavanja prvenstvenog reda za novu hipoteku

Abstract

By the law which defines the process of the registration in the real estate cadaster coming into force, apart from the category of the submitting entities, the rule to initiate and conduct the procedure ex officio is implemented. By this legal solution, the registration of rights is implemented automatically, without any impact on persons in whose favor the rights are registered, as well as on other interested parties, by which the freedom of execution and protection of civil subjective rights of parties is limited. The registration of rights ex officio, with the participation of the submitting entity, has reflected on the regulations of the law which defines mortgage, which has led to the limitations of subjective rights in case of registration of deletion of mortgage. The paper is specifically focused on the limitation of the autonomy of will of the owner of real estate in case of exercising the rights to the disposal of the unwritten mortgage, as well as the right on the reservation of the priority order for the new mortgage. In that sense, the paper will indicate the need for legal definition of the possibility to register the deletion of mortgage upon the request of the party.