Failure (or non-) settlement of joint ownership of spouses (BSM) after three years from divorce

If more than 3 years have passed since the dissolution of the marriage (in your case, the marriage ended by divorce), the court will no longer decide on the settlement of the joint ownership of property (BSM). Instead, a so-called legal fiction of settlement occurs pursuant to § 149 para. 3 of Act No. 40/1964 Coll., the Civil Code, as amended (hereinafter the “Civil Code”): “If within three years from the termination of the joint ownership of spouses, no settlement has been made by agreement, or if the joint ownership of spouses has not been settled by a court decision upon request within three years from its termination, it shall apply, regarding movable things, that the spouses have settled according to the state in which each of them exclusively uses the things from the joint ownership for their own needs, family, and household. Regarding other movable things and immovable things, it shall apply that they are in joint ownership with equal shares of both co-owners. The same applies accordingly to other property rights that are common to the spouses.”

From the above it follows that after 4 years from the dissolution of the marriage, settlement neither by agreement nor by court decision is possible anymore. All movable things you use for your own needs or the needs of your family have become your exclusive property. Those movable things (e.g., car, bicycle, etc.) that neither of you used and all immovable things (e.g., cottage, family house) have become your joint ownership with each owning a half share.

According to the decision of the Supreme Court of the Slovak Republic, file no. 5 Cdo 111/1997:
“If spouses used a joint apartment and its furnishings for three years after the divorce, each using designated parts of the apartment and sharing the rest without settling the joint ownership by agreement or filing a petition to the court, a legal settlement of the movable things in the joint apartment occurred by law. Things used in designated parts of the apartment became each spouse’s exclusive property, and things in shared parts of the apartment became joint property in co-ownership.”

If you want to settle the mutual property relations with your ex-spouse, you must settle the joint ownership (not joint ownership without division). This can be done in several ways. Primarily, this can be done according to § 141 para. 1 of the Civil Code by agreement: “Co-owners may agree on the termination of co-ownership and on mutual settlement; if the subject of co-ownership is immovable property, the agreement must be in writing.” The second option is settlement by the court. According to § 142 of the Civil Code: “If no agreement is reached, the court will terminate the co-ownership and execute the settlement upon the motion of one of the co-owners.”

Joint Property Ownership of Spouses (BSM)

According to § 149 paragraph 4 of the Civil Code: “If within three years of the termination of the joint property ownership of spouses, no settlement has been made by agreement or if the joint property ownership of spouses has not been settled by a court decision upon a proposal submitted within three years of its termination, it shall apply, in relation to movable property, that the spouses have settled according to the condition in which each of them exclusively uses the items from the joint property ownership for their own needs, their family’s, and household’s needs. Regarding other movable property and immovable property, it applies that they are in co-ownership with equal shares of both co-owners. The same applies accordingly to other property rights common to the spouses.”

The BSM ended on the date the divorce judgment became final. After three years from the finality of the judgment, a fiction of settlement of the BSM applies according to the above-mentioned provision, as a result of which you and your former husband are co-owners of the apartment in a ½ share each. Therefore, the regime of co-ownership shares must be applied to the ownership of the apartment.

Rights and Obligations of Co-owners in Relation to Joint Property

According to § 139 paragraphs 1 and 2 of the Civil Code: “All co-owners are jointly and severally entitled and obliged in legal acts concerning the joint property.” “Decisions about the management of the joint property are made by the co-owners by majority vote calculated according to the size of their shares. In case of a tie or if no majority or agreement is reached, the court will decide upon the proposal of any co-owner.”

If certain costs arise in connection with the ownership of the joint property, the co-owners are obliged to share these costs according to the size of their co-ownership shares. However, it is necessary to distinguish which costs are not directly related to the ownership right of the joint apartment but to its usage. Usage-related costs include, for example, consumption of water, electricity, and the like. Costs such as contributions to the repair fund or payments for the services of the apartment building manager relate to the ownership of the apartment and arise regardless of whether the apartment is inhabited or not, or who lives in it.

Termination of Joint Ownership Shares

Joint ownership shares can be terminated and settled by agreement of the co-owners. If no agreement is reached (for example, due to the unwillingness of one co-owner), it is possible to file a proposal with the court for termination and settlement of the joint ownership shares. According to § 142 paragraphs 1 and 2 of the Civil Code: “If no agreement is reached, the court shall terminate the joint ownership and perform the settlement upon the request of any co-owner. The court shall consider the size of the shares and the effective use of the property. If division of the property is not feasible, the court shall assign the property for reasonable compensation to one or more co-owners; it shall consider the effective use of the property and any abusive behavior of a co-owner towards the other co-owners. If no co-owner wants the property, the court shall order its sale and divide the proceeds according to the shares.” “For reasons worthy of special consideration, the court shall not terminate and settle the joint ownership by assigning the property for compensation or by selling the property and dividing the proceeds.”

Reasons worthy of special consideration may include, for example, the inability to secure alternative housing due to serious health reasons. The court would assess the seriousness of such reasons based on evidence presented.

Compensation for Use of a Joint Property Beyond the Co-ownership Share

If one of the co-owners uses the joint property beyond the extent corresponding to their ownership share and thereby prevents another co-owner from using the property to the extent they are entitled to, the co-owner who is prevented from using the property is entitled to compensation. However, according to court practice, such a claim is typically not granted if the co-owner has no interest in using the joint property, even though the other co-owner does not prevent them from using it, and their possibility to use the property together with the other co-owner according to their ownership share is preserved.

Summary

– A fractional co-owner is obliged to participate in the costs arising in connection with the ownership of a common thing.

– If a fractional co-owner does not wish to remain in fractional co-ownership with another fractional co-owner and no agreement is reached, they may submit a proposal to the court for the dissolution and settlement of the fractional co-ownership. The dissolution and settlement of fractional co-ownership will not occur only for serious reasons worthy of special consideration.

– If a fractional co-owner prevents another fractional co-owner from using the common thing to the extent pertaining to their co-ownership share, or otherwise makes its use impossible for them, the fractional co-owner may seek compensation through judicial means, even for a period retroactively (while it is also necessary to keep in mind the running of the statute of limitations).