HW Legal
As we know, "stealing" someone's land, flat, or building is not as simple as stealing a wallet. Ownership of immovable property (that is, land, a unit, a building that is not part of the land, and so on) is transferred by registering the ownership in the Land Registry. To bring about a transfer of ownership, you need to:
- conclude a contract (a purchase, gift, or exchange contract) and have the signatures on it officially certified;
- fill in and file an application with the relevant cadastral office to start proceedings for approving the entry of the ownership in the Land Registry; the application has to be accompanied by the registration document, that is the original of the contract with the officially certified signatures.
The application is filed on a prescribed form. The registration document, on the other hand, can take any format, as long as it meets the basic (formal) requirements and its content justifies the entry being applied for. An administrative fee (2,000 CZK) also has to be paid. The applicant can be any party to the proceedings, that is the person whose right is ending (the transferor) as well as the person whose right is arising (the acquirer), or both.
Can property really be transferred without the owner's knowledge or against their will?
As we hinted at the start, unfortunately it can. How might a thief, let's call him the "bad acquirer", manage it? Here are some ways:
- The bad acquirer forges the owner's signature and the official certification of it on a power of attorney, by which he authorises himself to transfer the property, which he then does;
- The bad acquirer forges the owner's signature and the official certification of it on a deed of gift or another contract, on the basis of which the property is then transferred;
- The bad acquirer assures the owner that they are signing some document other than a contract to transfer the property;
- The bad acquirer forces the owner to enter into the contract by threatening violence or making some other threat.
How can the owner defend themselves?
As soon as the (original) owner finds out that their property has been signed over to someone else in breach of substantive law, that is on the basis of an invalid contract, or a contract they never entered into at all, they need to act at once. No later than 1 month from the day they discover this, they have to apply to the cadastral office for a note of disputed entry (poznámka spornosti) to be recorded.
They then need to file an action for a declaration of their ownership of the property, within 2 months of applying for the note of disputed entry. If the court upholds the action, the cadastral office deletes the disputed entry and all the entries that followed from it. The original owner's ownership is then registered in the Land Registry once again.
In the meantime, the bad acquirer may have transferred the property to further acquirers who took him for the true owner, that is who acted in good faith as to his entitlement to transfer the thing to them (so-called good-faith acquirers). Even where the bad acquirer disposed of the property in this way, a note of disputed entry recorded in time also takes effect against the good-faith acquirers. This is because the interest in protecting the original owner takes precedence over the protection of their ownership.
Where the original owner was not properly notified of the registration of the bad acquirer's ownership, they can apply for a note of disputed entry up to 3 years from the date the bad acquirer's right was registered. They must, however, always keep to the subjective limit of 1 month from the day they learned of the entry. Once the three years have passed, the original owner is unfortunately out of luck.
What if the original owner misses the 1-month deadline for the note of disputed entry?
What happens if the original owner, after finding out that the property has been wrongfully signed over to someone else, drags their feet over dealing with it? If they fail to apply for a note of disputed entry within the subjective 1-month limit, the cadastral office can still record one, but it will only take effect against anyone who obtained an entry without being in good faith. For example, if the bad acquirer arranged with his cronies to transfer the "stolen" property between themselves one after another, the note of disputed entry will also take effect against the cronies, even though it was recorded after the 1 month from the day the original owner learned of the disputed entry.
A few tips to finish
Property owners would be well advised to set up the "Land Registry Watchdog" (Hlídací pes katastru nemovitostí). This is a change-monitoring service that alerts the owner (by data box, text message, or email) whenever there is a change in the Land Registry concerning the monitored property, specifically:
- a "seal" (plomba): a marker showing that the legal relationships are affected by a pending change;
- the carrying out of a registration, a record, or the recording of a note.
If you are about to acquire (for example buy) a property, keep an eye on how long the seller has owned it. If they have owned it for less than 3 years, there is a chance the property was signed over without legal grounds or on the basis of an invalid contract. In that case the original owner can come forward, have a note of disputed entry recorded, file a declaratory action, and, if the court upholds it, your freshly registered ownership of the property would be "deleted".
If you have found that someone else is registered as the owner of your property in the cadastre, or that the state of the cadastre does not match reality, get in touch with a specialist lawyer as soon as possible.