Ownership
of real estate
Markéta Selucká
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A plot of land
◼ Plot of land is considered to be an individualized part
of the surface of the Earth regardless of what
substance it si covered with (agricultural land, builtup
area, watercourses)
◼ Lot (parcela) if often used, especially in common
usage.
◼ Lot is a plot of land which is determined by its
position and geometry, depicted in a cadastral map.
◼ http://nahlizenidokn.cuzk.cz/
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Construction I.
◼ Civil law
◼ civil law regulations do not contain any specific
delimitation of the notion of a ‘construction’ either,
although they do operate with this term on several
occasions.
◼ Any construction object needs to be considered as a
construction if it is at such a building stage when the
layout of at least the first ground floor is apparent in a
clear and unmistakable manner.
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Construction II.
◼ Building law - regulation governs the construction and
the steps involved in the process of construction.
◼ The conceptions of a ‘construction’ are not
identical in civil law and in building law.
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Component
◼ a component (integral) part of a thing is anything
that pertains to a thing by its nature and cannot be
separated from it without reducing the value of the
thing
◼ Under the current Czech law (as opposed to some
legal regulations in the past), a construction is a part
of the plot of land
◼ We came back to the principle of ‘superficies solo
cedit’ (New civil code 89/2012).
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Accessories to a thing
◼ Accessories constitute independent things that are
not component parts of a thing.
◼ Accessories are characterised as things that belong to
the owner of the principal thing and are designated
by the owner to be used permanently together with
the principal thing.
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Ownership triad:
1. the right to use a thing and enjoy its fruits and
proceeds;
2. the right to dispose of a thing;
3. the right to hold a thing.
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Restrictions of ownership
◼ Restrictions of ownership that are applicable under
certain conditions to all owners and arise directly
from legal regulations constitute certain internal
limitations and tend to be identified as ‘conceptual
restrictions’.
◼ There is the rule, above all, that every owner of any
movable or immovable thing must abstain from
anything that might cause annoyance to an
unreasonable extent to another person or seriously
jeopardise the latter’s exercise of his rights.
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Acquisition of ownership
◼ Ownership title may be acquired in various ways
(called legal reasons) that are subject to various
classifications.
◼ The original acquisition needs to be distinguished
from derivative acquisition.
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Acquisition on the basis of contract I.
◼ As regards the acquisition of ownership on the basis
of contract, it is important to distinguish whether the
legal system accords the effect of translation or the
effect of obligation to the contract.
◼ In the former case, the transfer of ownership is
realised by the contract itself (its effect). In the
latter case, the contract is merely a legal title giving
rise to the obligation to transfer the ownership title,
while the actual transfer occurs only on the basis of
some other legal fact
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Acquisition on the basis of contract II.
◼ This is, above all, the hand-over and the take-over of
a thing, and ‘intabulation’ (i.e. entry into public
records) in the case of immovable things. Under the
Czech legal system, contracts typically have only the
effect of obligation.
◼ Where an immovable thing (real estate) is
transferred, ownership title is acquired upon the
entry into the real estate registry, unless provided
otherwise by a separate act.
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Acquisition on the basis of contract III.
◼ Purchase contract
◼ A purchase contract for real estate must be in writing
and the declarations of the wills of the contracting
parties must be on the same document.
◼ The contract must identify the parties by means of
designations required by cadastral regulations, specify
the subject matter of the purchase and agree on the
purchase price.
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Acquisition on the basis of contract IV.
◼ Contract of exchange
◼ may be concluded concerning a mutual exchange of
real estate.
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Acquisition on the basis of contract V.
◼ Pre-emptive right of purchase
◼ The pre-emptive right of purchase may be
characterised as a legal relation of obligation, whose
subjects are constituted by the obligor and the obligee.
The content of this relation is mostly the right of the
obligee to be offered by the obligor a certain object for
purchase should he wish to alienate it, and the
obligor’s obligation corresponding to this right.
◼ The pre-emptive right of purchase may arise mainly on
account of the following legal reasons:
a) on the basis of a contract,
b) by operation of law.
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Acquisition by inheritance
◼ the acquisition of ownership title, is that the passage
of ownership to heirs occurs upon the death of the
deceased. This is the so-called ‘principle of descent’
(as opposed to the decedent’s estate hereditas iacens
where inheritance is acquired by its transmission).
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Acquisition on the basis of other facts
specified by law
◼ accretions of a thing
◼ prescription (usucapio, acquisitive prescription,
“vydržení”)
◼ processing
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Termination of ownership title I.
◼ absolute termination
◼ Absolute termination occurs when ownership title to a
thing terminates without anybody else acquiring it.
◼ relative termination
◼ Relative termination includes situations when
ownership title terminates for the former owner with
someone else acquiring the right at the same time.
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Termination of ownership title II.
◼ Termination on the basis of a manifestation of the
will of the existing owner
◼ By contract
◼ By dereliction of a thing
◼ By destruction of a thing
◼ By consumption
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Termination of ownership title III.
◼ Termination independent of the will of the existing
owner
◼ By cessation of existence of a thing
◼ By loss of a thing
◼ By death of the owner
◼ By prescription
◼ By decision of a state body
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Protection of ownership title
◼ The fundamental legal protection always consists of
the legal instrument of the highest legal power – the
Charter of Fundamental Rights and Freedoms.
◼ Action for the recovery of a thing (real action)
(“Žaloba na vydání věci (žaloba reivindikační)”)
◼ Action to repel a claim (actio negatoria) (“Žaloba
zápůrčí (negatorní)”)
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Common property I.
◼ ‘apportioned’ common property is a share (an ownership
interest) representing the degree to which co-owners participate
in the rights and obligations ensuing from their co-ownership of
a common thing.
◼ The share does not delimit a certain part of a thing with respect
of which a co-owner is authorised to exercise his ownership
title; it expresses the legal position of a co-owner towards the
other co-owners, determining how the individual co-owners
participate in the proceeds of a thing, what expenses they bear,
◼ ‘Apportioned’ common property comes into existence in the
same manner as ownership title
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Common property II.
◼ These specific rights and duties have been
traditionally classified into three groups according to
what subjects they pertain to:
1. the mutual relationship between co-owners,
2. the relationship of all co-owners towards third persons
concerning the common thing,
3. the relationship between one co-owner towards other
co-owners concerning his co-ownership share.
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Questions
1. How is the concept of "construction" defined in
Czech Civil Law?
2. What is "an integral part of a thing"?
3. What does "an accessories of a thing" mean?
4. What does "ownership triad" mean?
5. What is necessary for conveying a real estate?
6. What does a "purchase contract" mean?
7. How to originate a pre-emptive right of purchase?
8. What does an "accretions of a thing" mean?
9. What are the requirements for prescription?
10.How can an ownership be terminated?
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Literature for study:
◼ SELUCKÁ, Markéta - FIALA, Josef - HURDÍK, Jan RONOVSKÁ,
Kateřina - KOUKAL, Pavel HANDLAR,
Jiří. INTRODUCTION TO THE CZECH CIVIL
LAW I. , PARTIES, OWNERSHIP, SALE, LEASE, LIABILITY
FOR DAMAGES. Brno : Masarykova univerzita, 2009.
96 s. Edice učebnic PrF MU č. 428. ISBN 978 -80 -210 -
4925 -3.