Application of the Law on Housing Relations

According to Article 11 of the Law on Housing Relations, the acquisition of the occupancy right implies, on the one hand, that the apartment is allocated to a person in accordance with a decision, that the person has signed a contract on apartment use with the authority allocating the apartment and, on the other hand, that the occupant did move into the apartment. If he/ she did not move into the apartment, despite the valid decision and contract, there is no occupancy right and thus the apartment cannot be considered the claimant’s “home” within the meaning of Article 8 of the ECHR.¹⁵⁸¹ As a rule, the legal and factual grounds for allocating the apartment and concluding a contract on apartment use is the apartment allocation list. If such a list is not validly established, there is no possibility of filing a request for allocation of the apartment.¹⁵⁸² A decision on the allocation of the apartment can be taken only by the holder of the disposal right over the apartment.¹⁵⁸³

According to Articles 19 and 20 of the Law on Housing Relations, spouses are co-holders of the occupancy right. In case of a dissolution of the marriage, it is not unconstitutional if one spouse is declared the occupancy right holder.¹⁵⁸⁴ If one spouse is not a member of the household of the other spouse but lives instead in the apartment of his father, he is entitled to file a request to transfer the occupancy right to himself after the death of his father regardless of the fact that formally he is still married.¹⁵⁸⁵

Following the entry into force of the Law on Housing Relations in 1974, the establishment of the co-tenant relationship according to Article 71 et seq. of the Law on Housing Relations was no longer permitted. However, a co-tenant relationship established in an unlawful manner in 1989 can be justified per se where, taking into account housing needs, the eviction of the unlawful co-tenant would be a disproportionate measure in order for the lawful co- tenant to occupy the rest of the apartment.¹⁵⁸⁶ However, in both cases, the BiH Constitutional Court, having acted in accordance with Article 6 of the Dayton Peace Agreement, reached the conclusion that occupation of the remaining part of the apartment by the co-tenant was in accordance with the ECHR.¹⁵⁸⁷ Therefore, it is necessary to strike a balance between the opposing interests.

If the subtenant is evicted from the apartment in accordance with a decision of the competent authority (Article 54 of the Law on Housing Relations), such decision per se does not justify the eviction of the occupancy right holder and the members of his/her household.¹⁵⁸⁸

An unlawful occupant of the apartment can acquire protected legal status if that occupant has used the apartment for a period of at least 8 years.¹⁵⁸⁹ However, this does not apply to apartments which have already been allocated in a lawful manner to a third person,¹⁵⁹⁰ regardless of whether that person lived in that apartment or not.¹⁵⁹¹ The time limit of 8 years for “acquisition of occupancy right by adverse possession” expired on 6 December 2000, since the occupancy right could not be acquired as of that date any more.¹⁵⁹² The co- tenant of an unlawful occupant of the apartment does not enjoy an independent right to continue occupying the apartment if the unlawful occupant was evicted from the apartment in accordance with a legally binding decision.¹⁵⁹³

Whether a person is a member of the household of the occupancy right holder (Articles 6 and 22 of the Law on Housing Relations) or not is to be determined according to the state of facts at the moment the court takes its decision, and not at the moment of death of the occupancy right holder.¹⁵⁹⁴ If a person is not included in the list of members of the household of the occupancy right holder (children, spouse etc.), he/she has the possibility to submit evidence proving that he/she acquired the right to transfer the occupancy right to himself/herself based on other criteria.¹⁵⁹⁵ If another apartment is allocated to the occupancy right holder, the members of the household of the occupancy right holder are not entitled to transfer the occupancy right. They share the same destiny as the occupancy right holder.¹⁵⁹⁶ The members of the occupancy right holder’s household are entitled to use the apartment if the occupancy right holder has the apartment privatised. On the other hand, the owner of the apartment is entitled to use the apartment at any time even if he/she moved out of it due to bad relations with one of the members of his/her household.¹⁵⁹⁷

If a member of the family household moves out of the apartment, he can, upon the approval given by the occupancy right holder, return to the apartment and thus acquire again that legal status, including the right to file a request for transfer of the occupancy right from the occupancy right holder in case of his/her death.¹⁵⁹⁸ However, if he/she moves into the apartment only after the death of the occupancy right holder, there is no possibility of transferring the occupancy right, since there was no common household before the death of the occupancy right holder. Occasional visits are not sufficient to establish a common household.¹⁵⁹⁹ However, this does not apply if a former member of the household of the deceased occupancy right holder, who abandoned the apartment during the armed conflict, cannot return to the apartment due to objective insurmountable obstacles.¹⁶⁰⁰