Petition for the registration of the BSM settlement agreement

The petition for registration in the real estate register must be filed within 3 years from the dissolution of the BSM, otherwise an irrebuttable legal presumption arises establishing tenancy in common of both former spouses to the real estate property (by operation of law, the real estate property falls into the tenancy in common of both former spouses in an equal share of 1/2). Therefore, if you file the petition for registration based on the BSM settlement agreement after 3 years, the cadastral department will not allow the registration.

The above follows from several court decisions. For example, pursuant to the judgment of the Regional Court in Ostrava, Case File No. 22 Ca 671/1995: “If the petition for registration is not filed within the three-year time limit, the presumption of settlement pursuant to Section 149 (4) of the Civil Code takes effect, even if the agreement was concluded before the expiry of the relevant time limit.” It is not decisive that the agreement was concluded within 3 years from the dissolution of the BSM. According to the decision of the Regional Court in Brno, Case File No. 35 Ca 52/2016: “For the settlement of the community property of spouses within the established three-year time limit from the dissolution of the community property, if it concerns real estate, it is not sufficient to merely conclude the settlement agreement within this time limit, but it is also necessary to file a petition for registration in the real estate register within this time limit, otherwise the statutory presumption of tenancy in common shall apply.”

In the event that you and your former husband concluded a community property settlement agreement, the subject of which was also the settlement of the ownership right to the real estate property, this is merely a legal title (titulus) for the acquisition of the ownership right to the real estate property. Solely on the basis of this legal title, you do not become the exclusive owner of the real estate property, as the acquisition of the ownership right to a real estate property also requires the so-called modus, i.e., entry into the real estate register by registration, with which Act No. 162/1995 Coll. on the Real Estate Register and on the Registration of Ownership and Other Rights to Real Estate (the Cadastral Act), as amended, associates constitutive effects. The constitutive nature of the effects means that the ownership right arises only upon the decision of the District Office, Cadastral Department, to allow the registration. Since registration proceedings are exclusively initiated upon petition, even if the District Office, Cadastral Department, learned about the conclusion of your community property settlement agreement, it cannot initiate registration proceedings on its own initiative.

In the sense of the Supreme Court of the Slovak Republic, Case File No. 8 Sž 10/2007: “If the registry administration, prior to issuing a decision to reject a petition for the registration of an ownership right to real estate pursuant to a community property settlement agreement, did not investigate the reason why the agreement was concluded after the expiry of the three-year preclusive time limit established in Section 149 (4) of the Civil Code, it proceeded from an insufficiently established factual state of the matter, which was a ground for the court to quash its decision and remit the case to it for further proceedings.”