Communicated on 22 March 2016

FIRST SECTION

Application no. 26491/13 Ned ž at SALIU against the former Yugoslav Republic of Macedonia lodged on 4 April 2013

STATEMENT OF FACTS

The applicant, Mr Ned ž at Saliu , is a Macedonian national who was born in 1961 and lives in Skopje. He is represented before the Court by Mr Z. Davidovik and Mr D. Jankovik , lawyers practising in Skopje.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

In December 2010 Mr M.L. and the applicant ’ s father bought a plot of undeveloped construction land in Skopje. In the public records, they were registered as having joint title to the entire plot. The share of each of them was as follows: Mr M.L. obtained title to a notional ( идеални ) two-thirds of the land and the applicant ’ s father, to a notional one-third.

On an unspecified date in 2011, Mr M.L. lodged an application against the applicant ’ s father, asking that the Skopje Court of First Instance carry out a physical division of the land according to each party ’ s notional share. On 17 May 2011 the court carried out an on-site inspection in the presence of an expert who drew up a report which was apparently in line with Mr M.L. ’ s proposal for dividing the land. The report specified the parcels which were to be allocated to each co-owner. On 3 June 2011 the applicant obtained title to the notional share of his father on the basis of a deed of gift. On 11 July 2011 the applicant, who was represented by a lawyer, made a request to join the proceedings. He contested the division of the land recommended by the expert, arguing that his future parcel was of a much lower value than the one which was to be allocated to Mr M.L. That was because town planning documents had shown Mr M.L. ’ s future land as allowing the construction of a residential building and a petrol station, while his future land was “worthless”.

On 22 December 2011 the Skopje Court of First Instance accepted Mr M.L. ’ s proposal and divided the land according to the parties ’ notional shares. It relied on the expert ’ s report and found that such a division was “possible” and that it “ensured that the allocated parcels have a regular form and enable rational use”. As to the applicant ’ s complaint that the parcel allocated to him was of a much lower value than Mr M.L. ’ s, the court held that the question of “whether land is intended for construction ( постоење на градежна маркичка ) does not have any bearing on the division and determination of physical parts of the land to be allocated to the parties”. The court stated that it had taken into consideration all the relevant provisions of the Non-contentious Proceedings Act concerning the physical division of property.

The applicant appealed against that judgment, reiterating that the land allocated to him was of a much lower value than the land which Mr M.L. was to obtain. In that connection he argued that the land on his future parcel was steep and inappropriate for construction, whereas the parcel allocated to Mr M.L. had access to several roads and was intended (in the town plans) for construction. He further submitted a copy of the relevant town plan, which showed that the land allocated to him was intended to have green spaces and a public road.

On 31 August 2011 the Skopje Court of Appeal allowed the applicant ’ s appeal and quashed the lower court ’ s judgment. The relevant parts of the judgment read as follows:

“Regarding the division of land, a court should not be guided only by the notional shares of the owners, but each party should obtain land of a value which corresponds to his notional share ...

The first-instance court wrongly concluded that the possibility of construction on a particular piece of land does not have any effect on the physical division and determination of the individual parcels which should belong to the parties.

On the contrary, as correctly maintained in the appeal, this court accepts that should [the relevant town plans] provide for the construction of a petrol station or any other building, (such a circumstance) is decisive for the physical division of that property. The court was obliged to take that element into consideration and ensure that each party obtained a part of the property of a value corresponding to his proprietary share.

In the renewed proceedings, the court should take the instructions of this court into consideration ... to ensure that the owners ’ needs are respected ... [so that] each of them obtains part of the land of a value [corresponding] to his notional share.”

At a hearing of 3 April 2012, the applicant requested that the court determine the value of the entire land or, in the alternative, to commission a fresh report by an expert with a different proposal on the division of the land to enable each party to obtain land of an adequate value. The proposed divison was unreasonable. By a judgment of the same date, the first-instance court accepted Mr M.L. ’ s proposal and ordered the same physical division of the land as that specified in its judgment of 31 August 2011. The court reiterated that such a division was “possible and reasonable” and that it led to the creation of “two functional plots”. As to the applicant ’ s arguments, the court stated:

“The possibility of construction ... does not have any effect on the physical division and the determination of the individual parcels which should belong to the parties. The division concerns land which is taken as a cadastral and not as an urban parcel, the latter being of a changeable nature given that town planning is subject to changes. The court considers that the division of the land complies with the expert ’ s report ... and corresponds to the parties ’ notional shares ... The court took into consideration [the relevant statutory provisions] ... It does not carry out a physical division by means of a valuation and sale of the land ...”

The applicant appealed, arguing that the first-instance court had disregarded the instructions of the Court of Appeal in its judgment. He further submitted that town planning had in the meantime specified that the parcel allocated to Mr M.L. allowed the construction of a residential building, whereas his future parcel would have green spaces and a road.

By a judgment of 27 September 2012, the Skopje Court of Appeal dismissed the applicant ’ s appeal and confirmed the lower court ’ s judgment. It found that the land in question had been divided according to the proposal contained in the expert ’ s report, that it had corresponded to the parties ’ notional proprietary shares and that the parcels which had been allocated to each party had regular forms that would enable their rational use. The court further stated:

“... the first-instance court took into consideration [the applicant ’ s] arguments that the parcel allocated to him was of a lower value ... but dismissed them, providing reasons which this court finds acceptable.”

B. Relevant domestic law

The relevant provisions of the Non-contentious Proceedings Act concerning the physical division of property provide as follows:

Section 223

“If after partition a party obtains property of a higher value than his or her share in the joint property, the court shall order that party to pay the difference, up to the value of the share of the other parties.

If the partition concerns real estate, the parties can request that a charge is recorded regarding that property, up to the amount (of the difference).

Section 224

If an object or property that is in joint ownership cannot be physically divided or if such a partition would considerably affect its value, the court can allocate it to only one owner, whereby it will determine the amount that should be paid to the remaining co-owners ...”

COMPLAINT

The applicant complains that dividing the land in a way which meant he obtained a parcel of a much lower value than his notional share of the entire property was unreasonable and in violation of his rights under Article 1 of Protocol No.1 of the Convention.

QUESTION TO THE PARTIES

H a s there been an interference with the applicant ’ s peaceful enjoyment of his possessions, within the meaning of Article 1 of Protocol No. 1? If so, was it in compliance with this provision?