Part five of our series on disputes over immovable property in an estate. Find out which three ways of wording the claim court practice recognises and which of them are legally correct.
In the previous parts we explained the nature of this action, the court's jurisdiction, the question of standing and the possibility of an interim measure. In this part we look at how exactly the claim itself (the prayer for relief, or petit) should be worded – that is, what the claimant should seek in the action.
Since this is a declaratory action under § 137(c) of the Slovak Code of Civil Contentious Procedure, the claimant must demonstrate a so-called urgent legal interest in the determination. Such an interest exists where the action can remove the existing legal uncertainty between the parties to the dispute and provide a firm basis for their further legal relationship – provided that this uncertainty cannot be removed in any other way. The urgent interest must still exist at the time the court decides, and it is generally present where, without the determination, the claimant's right would be at risk or their position uncertain.
The court also examines whether the declaratory action really resolves the dispute definitively, or whether further proceedings will have to follow in any event.
An important rule for wording the claim is also that a declaratory ruling must correspond to the legal state of affairs at the time the decision is delivered (§ 217(1) of the Slovak Code of Civil Contentious Procedure) – the court therefore cannot, in principle, determine rights as they existed in the past if they have since ceased to exist.
There has long been inconsistency in the practice of the Slovak courts as to how the claim in this type of dispute should be worded. Let us examine three variants:
We consider this variant the most correct in terms of the general requirements for declaratory rulings. It is supported, for example, by a 2008 decision of the Supreme Court of the Slovak Republic (case no. 1 Cdo 26/2007), according to which the court must examine whether the immovable property belongs to the estate at the time the decision is delivered – that is, it must also take into account any events that may have changed ownership after the deceased's death (for example, acquisitive prescription). In that decision, the court stated that determining rights retrospectively (as at the date of death) does not correspond to the statutory framework for declaratory actions.
The Constitutional Court of the Slovak Republic came to the same conclusion in 2017 (case no. I. ÚS 151/2016), emphasising that if a declaratory action is also to serve a preventive purpose (forestalling further disputes), it makes no sense for the courts to artificially prolong legal uncertainty by not resolving the question of the good faith of the acquirer (registered in the Land Registry (kataster) as the owner) straight away, forcing the parties to bring further actions.
Neither of these variants is legally correct, and so neither comes into consideration. The deceased lost legal personality on the date of death, so at the time of the court's decision the deceased can no longer be a holder of rights. A direct determination of the heirs' ownership right is likewise not possible, because the court would thereby in effect bypass the inheritance proceedings themselves – only the notary in the inheritance proceedings can decide definitively on the heirs' ownership right.
This variant represents the second school of thought and also has support in the case law. In a 2010 decision (case no. 3 Cdo 154/2010, published as R 32/2011), the Supreme Court of the Slovak Republic stated that these disputes concern an assessment of whether the deceased was the owner of the property at the time of death – circumstances arising later no longer have any bearing on the court's decision. The court also emphasised that if the immovable property is subsequently dealt with in the inheritance proceedings, the inheritance order does not confirm that the heir is the owner of the property at present.
The Constitutional Court of the Slovak Republic reached a similar conclusion (that the state of affairs as at the date of the deceased's death should always be determined) in 2013 (case no. I. ÚS 482/2013-50), while also stating that a lack of urgent legal interest cannot be found merely in the fact that further transfers of the ownership right took place after the deceased's death – the opposite conclusion would, in its view, lead to a denial of justice (denegatio iustitiae).
In our view, the wording under point (a) and the wording under point (c) are not interchangeable – they differ in the scope of what the court must prove in the proceedings (the current state of affairs at the time of the decision vs. the state of affairs as at the date of the deceased's death). Nevertheless, we would also point out that determining the ownership right as at the date of the deceased's death (variant c) does not, in our view, satisfy the general theoretical requirements for declaratory rulings, even though court practice accepts it.
According to the conclusions of the Supreme Court of 16 December 2010, case no. 3 Cdo 154/2010 (R 32/2011), regardless of the wording of the claim (i.e. a determination of whether the property belongs to the deceased's estate, or whether the deceased was the owner of the property as at the date of death), the court should always determine the state of affairs as at the date of the deceased's death.
In the following part 6, we will look at how this legal uncertainty can be dealt with in practice, and at our recommendation as to which form of claim is "safer" for an heir as claimant.
Are you preparing an action for a determination that immovable property belongs to the estate and unsure how the claim should be worded? We will prepare the action so that it reflects the current decision-making practice of the courts.
Arrange a no-obligation consultation.
