Relative invalidity of legal acts and the principle of material publicity of public lists in relation to real estate in SJM

As already mentioned, only one of the spouses will be registered as owner in Part A of the certificate of ownership, although it is true that the property is acquired by law into the SJM if one of the exceptions in section 709 (1) of the Civil Code is not fulfilled, namely for the acquisition of what:

• serves the personal needs of one of the spouses,
• only one of the spouses has acquired by gift, inheritance or inheritance, unless the donor or the testator in the acquisition in case of death showed a different intention,
• acquired by one of the spouses as compensation for non-pecuniary damage to their natural rights,
• acquired by one of the spouses by legal action relating to his or her exclusive property,
• acquired by one of the spouses in compensation for damage, destruction or loss of his exclusive property.

Therefore, if one of the above exceptions is not fulfilled, the situation thus registered in the CN will be contrary to the real state, since the property right of the other spouses arose ex lege but was not entered in the public register. “The will of both spouses is not decisive for the acquisition of assets into SJM. Thus, the acquisition of property is not bound to the consent or knowledge of the other spouse. The latter may, under certain conditions, invoke the invalidity of such a legal act (Sections 714 and 715), but this does not change the fact that the matter becomes part of the common property..” (1)

It can be said that the very execution of a property right deposit in favor of one of the spouses does not entail any consequences for the second spouse at first, he may not even notice it. The problem arises only in the case when the spouse, who is registered in the Land Registry as the owner, decides to sell the immovable thing that is legally part of the SJM.

According to Section 714 (1) of the Civil Code, the consent of the other spouses is required for the management of property in SJM, which cannot be considered ordinary. The sale of immovable property in SJM cannot be regarded as normal management of property in SJM, which, moreover, has been repeatedly imported by judicial case-law, for example the decision of the Supreme Court of the Czech Republic of the Czech Republic of October 31, 1963, 3 Cz 55/63, published in the Collection of Court Decisions and Opinions, 3-4/1964:”The sale of real estate, belonging to the legal property community of spouses, is undoubtedly a disposition deviating from the usual management of joint property“.

The usual procedure for dealing with property in SJM without the consent of the other is to invoke the relative invalidity of the legal act of the other spouse on the basis of Section 714 (2) of the Civil Code.

However, relative nullity does not burden the legal actions of one of the spouses to whom he handles real estate in SJM in certain cases. According to Section 984 of the Civil Code, it is true that”if the state entered in the public register is not consistent with the actual legal status, testifies the registered status in favor of the person who has acquired the right in kind for consideration in good faith from a person entitled to do so under the registered status. Good faith is assessed at the time when the legal act took place; however, if the right in rem arises only by entry into the public register, at the time of submission of the application for registration.“This provision provides protection to a bona fide purchaser against that of a spouse who is not listed in the public register. Protection consists in the inability of the spouse to successfully invoke the relative invalidity of a legal act that was made without his consent.

It is clear that in such a situation there is a clash of two constitutional principles, namely the protection of property rights (Article 11 of the LZPS) and the principle of legal certainty (Article 1 (1) of the Constitution). The collision of these principles is so significant that the application of both of them is excluded, and it is necessary to consider which one “wins”. The principle of material publicity of a public list, which is reflected in Article 984 of the Civil Code, is a legal instrument that resolves the conflict between the two principles. It shifts protection away from owners to the benefit of bona fide purchasers and in favour of protecting legal certainty. The shift in protection results in a stronger impact on owners of one of the fundamental principles of civil law, namely the principles of vigilantibus iura scripta areThat is, the rights belong to the watchful. In view of this principle, the second spouse has the opportunity to request the elimination of the discrepancy in the public list, in accordance with Section 985 of the Civil Code. (2)

The other spouse must therefore act “vigilantly” in order to protect his property rights. It is necessary that he invokes his right in a timely manner. “The beneficial owner is protected against wrongfully executed registration in the Land Registry by means of an objection (described in § 985 of the ObčZ) and its registration in the Land Registry. In this way, it is possible to register a dispute note in the Land Registry concerning the pending legal proceedings relating to the real estate at the request of the person concerned.“(3)

The conclusion that the spouse who is not listed in the public register cannot invoke relative nullity can be supported by the following line of reasoning: “which of the two subjects was better able to prevent the negative situation described and eliminate the imminent risk? Assignee or concerned spouse B? In this case, it is unquestionably that the spouse B concerned must be aware that spouse A has acquired the property in the manner established by the SJM, and he must therefore ensure that the registration in the land register is brought into line with the actual legal situation. It also has the possibility to use the Institute of the Dispute Note (in this case according to § 986), thus eliminating the good faith of third parties in the truthfulness and completeness of the registration in the Land Registry. If he does not do so, it is to his detriment. On the contrary, the acquirer did not breach any obligation, did not have the opportunity to prevent the risk situation; therefore, the negative consequences that have arisen cannot be attributed to him'. (4)

The exception to the situation in which the spouse cannot rely on the relative invalidity of the legal act is a legal act in relation to the real estate in which the family household is located in accordance with section 747 of the Civil Code. In the above situation, the transferee cannot rely on the protection of good faith within the meaning of Section 984 of the Civil Code, since, in general, the need to protect the so-called neglected spouse at the expense of the bona fide transferee is greater. This is due to the fact that the family household and its protection is preferred by the Civil Code, and there is also no contradiction with the registered one, since the family household cannot be registered in the real estate register (or in any other public register).

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[1] Psutka J. Commentary on Section 709 of the Civil Code in Králíčková, Z., Hrušáková, M., Westphalová, L. et al. Civil Code II. Family law (§ 655−975). Comment. 2nd edition. Prague: C. H. Beck, 2020, p. 143 - 157

[2] Vrzalová L., comment on section 984 of the Civil Code in Spáčí, J. et al.: Civil Code III. Rights in rem (§ 976—1474). Comment. 2nd edition. Prague: C. H. Beck, 2021, p. 36 - 54:

[3] Power. M. Real Estate Law after Recodification — Material Publicity of Entries in the Land Registry, Legal Rozlooky PR 15-16/2014 p. 546

[4] Tégl, P. New approaches and possibilities in the regulation of the joint property of spouses in OZ. Legal space, 2015