Donation of a half-share in a house and community property of spouses

The donation of a portion of real estate by spouses to their offspring is, of course, possible, even if the property is held in the Community Property of Spouses (BSM). In the event of donating any portion of an immovable property to a son or another person that belongs to the community property, the consent of both spouses will be required, as the disposal of real estate cannot be classified as the management of ordinary matters. Within the meaning of the provisions of Section 145, Paragraph 1 of Act No. 40/1964 Coll., the Civil Code, as amended (hereinafter referred to as the “Civil Code”), it stipulates that: “ordinary matters concerning common assets may be settled by either spouse. In other matters, the consent of both spouses is required; otherwise, the legal act is invalid.”

In the event that both spouses agree to donate the real estate to their son, it will be necessary to draft a deed of donation along with an application for the registration of title in the Real Estate Register. The signatures of the transferors, i.e., both spouses, must be officially certified pursuant to Section 42, Paragraph 3 of Act No. 162/1995 Coll. on the Real Estate Register and on the Registration of Ownership and Other Rights to Real Estate, as amended. Since only one-half of the real estate is concerned, the spouses as undivided community co-owners of ½ of the real estate, together with their son as the sole owner of ½ of the real estate, would become tenancy-in-common co-owners of the entire real estate, unless the real estate consists of two separate residential units.

You can read more about the essential elements of a deed of donation in our article.

If the consent of both spouses is not granted, such an instance constitutes a so-called relative invalidity of a legal act pursuant to the provisions of Section 40a of the Civil Code, which must be contested within the general 3-year limitation period that begins to run from the execution of the act. “The Civil Code does not specify in further detail against whom and in what manner the entitled person may invoke the relative invalidity of a legal act. These facts have been established by judicial practice, which distinguishes the invocation of relative invalidity: 1/ in civil judicial proceedings by means of a lawsuit, but also by a counterclaim or by raising an objection, 2/ outside of judicial proceedings by a unilateral legal act addressed to the other parties.” (Decision of the District Court Stará Ľubovňa dated June 3, 2013, Case Docket No.: 5C/119/2011).

Relative invalidity does not occur automatically by operation of law, but is based on a rebuttable presumption that even a relatively invalid legal act produces legal consequences unless the entitled person invokes its relative invalidity. Meaning, even if the other spouse did not grant consent to the transfer of the real estate, the transfer of ownership right would be validly executed up until the moment the other spouse invokes the invalidity of this legal act. Subsequently, however, such a legal act becomes void from the very beginning, i.e., with ex tunc effects.