Summary

On 15 March 2016, the Administrative Law Chamber of the Supreme Court made a judgment in case No. 3-3-1-82-15 that has caused a ripple among notaries and assistant judges. Namely, the Court found that in a situation where a jointly owned registered immovable of divorced spouses has been left to the spouse who is already in the land register as a sole owner, the registered immovable continues to be in joint ownership until a new entry has been made. This approach disregards the practice used for over 20 years, establishing that an entry that does not need correcting shall not be corrected. The article takes a look at the grounds on which this change of mind is based, and what it might lead to in practice.

It also views the comments to the Law of Property Act. The comments on the connections between mortgage and common ownership suggest that a legal share of an immovable property can be encumbered in part, although subsection 277 (4) and subsection 325 (2) of the Law of Property Act state otherwise. The commentators state that when a co-owner acquires a mortgaged share of another co-owner, the legal shares shall remain legally independent. The article seeks an answer to two questions arising from the described ideas: can a property be co-owned with itself and is it possible to use limited real right to partially encumber a property?