The protection of the family household takes precedence over the protection of the good faith of third parties in the disposal of real property in which such a household is located.
Family, parenthood, and marriage enjoy special legal protection under the Civil Code. One way in which this principle manifests itself is the protection of the family household – to be understood, in one way, as the community of individuals living together, i.e., as a rule, married couples and their underage children, but also, in another, the furnished dwelling in which these cohabitants, forming the family household, have taken their permanent residence.
The protection of this family household finds its expression inter alia in the fact that a spouse who would otherwise be entitled to freely dispose of the house or apartment in which the family household is installed (e.g. because they are the exclusive owner of the real property) must in fact refrain from anything that could jeopardize the stay of the family in such apartment or house (or make their stay altogether impossible). In particular, such spouse needs the consent of their partner before they may sell the house or apartment, or create a right to the house (or a part thereof, or the apartment) whose exercise is incompatible with the couple’s (family’s) residence, unless they ensure a new home for the couple or family which is in all respects equivalent to their current residential circumstances. A similar rule applies to the possibility to terminate the lease to a house or apartment in which a family household is situated.
In the event of a breach of the aforementioned prohibition, the other spouse may invoke the nullity of the relevant transaction which led to the family household being threatened, whereas this defense is available for up to three years from the day on which the spouse learned of (or could and should have learned of) the infringing transaction.
In a recently published decision, the Supreme Court confirmed that the above-mentioned protection of the family household in fact enjoys precedence even before the protection of good faith on the part of a third person who strictly negotiated with the one spouse who is entered in the land register as the exclusive owner of the real property in question. This is because the protection of the family household is not based on any ownership or other title to a publicly accounted-for piece of real property, nor is the family household as such being entered in the land register files (which is why no third party can invoke protection by pointing to their good faith in the public record – known as the principle of material publicity).
Because of this, parties to an agreement in which a married natural person divests real property should always insist that their spouse provide an affidavit to the effect that the family household is not situated on the premises in question or, as the case may be, that the spouse agrees with the legal transaction (sale, pledge) of the real property. Failure to do so means that the contractual partner exposes themselves to the risk that the other spouse might later challenge the legal transaction as null and void (and succeed, if the family household was in fact situated in the property).
Civil Code (Act No. 89/2012 Coll.); Sec. 747
Supreme Court judgment 21 Cdo 3017/2019 of 2 June 2020
Author: bnt attorneys-at-law