In today's article we bring you a useful overview of the important legislative changes brought by the amendment to the Civil Procedure Code. In particular, this amendment changes the procedure for confirming the certificate of acquisition of ownership through the institution of possession.
The aim of the amendment to the Civil Procedure Code is primarily to change the method of certifying the retention of ownership of immovable property or the right corresponding to an easement in a way that does not jeopardise the protection of the right of ownership, provided that the principle of legal certainty is preserved.
The above means that after the entry into force of the amendment, i.e. from 1 May 2021, only a notarial certificate will no longer be sufficient for the possession of land. The power to certify the so-called possession will be transferred from notaries to courts and thus a new procedural arrangement will be created - the procedure for confirmation of possession. The reason for the change is the many cases where land was transferred without the owners of the land in question being aware of the fact. The change is also due to the fact that various problems have been encountered in applying the current legislation in the context of the issue of certificates of declaration of possession.
Retention of title
The main purpose of the institution of retention of title is to reconcile the long-standing factual situation with the legal situation. It is the acquisition of a right of ownership (or a right in rem corresponding to an easement) over a thing - never just over a part of it. It is a method of acquiring ownership whereby the rightful holder becomes the owner after the expiration of a statutory period of time. This is a period of three years for movable things and more than ten years for immovable things.
Jurisdiction of the courts
The newly created jurisdiction of the courts will consist in a statutory process to confirm the acquisition of the ownership right to immovable property or the right corresponding to an easement by retention of title. The court will reject the application for such a decision if the substantive conditions for possession by the claimant have not been met, thus creating room for an effective defence of the person whose rights are affected by the possession.
Call Resolution
The amendment will also provide for an obligation to publish information in the form of a " call-in order" that someone requests such confirmation of retention by the court, which is intended to ensure that the persons concerned are informed.The summoning order shall be served without delay:
It must be published without delay by public notice in the Commercial Gazette and on the official notice board of the municipality in whose cadastral area the property concerned is located. All the parties concerned will thus have the right to express their views and, if necessary, to lodge objections (the period may not be shorter than 6 months from the publication of the notice of invitation in the Commercial Gazette).
Application for initiation of proceedings
Proceedings for confirmation of possession under the draft law is a petition proceeding, whichcan therefore be initiated only on a petition, and the petition will be entitled to be filed by the person who claims that he/she has acquired a right of ownership to the immovable property or a right corresponding to an easement by means of possession.The court with local jurisdiction is the court in whose territorial district the immovable property is located.
The parties to the proceedingsare:
After the issuance of a "notice to appear", the party who filed the objections is also a party to the proceedings. If the court rejects any objections raised, it will issue a decision on the basis of which the claimant can apply for registration in the Land Register. The order confirming the possession is a declaratory decision, i.e. the court shall also necessarily indicate retrospectively in the order the date on which the claimant became the owner of the immovable property. The final order confirming the retention of possession is binding on everyone.
In addition to the general requirements, the proposal must include:
The amount of the court fee for filing a petition for the commencement of proceedings for confirmation of possession will be 99.50 €.
The amendment of the Civil Procedure Code and the effort to introduce a fair balance between the parties to the dispute, i.e. between the rightful holder and the original owner, is a step towards strengthening the right of ownership and increasing the legal certainty disturbed by the current legislation.
For more information, please contact us at: info@grandoaklaw.com
Resources:
https://www.slov-lex.sk/static/pdf/2021/68/ZZ_2021_68_20210501.pdf
https://www.nrsr.sk/web/Default.aspx?sid=zakony/zakon&MasterID=8024
https://www.justice.gov.sk
