Open AccessThe real estate encumbered with a mortgage as the object of proceedings for the division of joint property in the light of the case law of the Supreme Court
Author(s) -
Tomasz Niewiadomski,
Kamila Spalińska
Publication year - 2020
Publication title -
nieruchomości@
Language(s) - English
Resource type - Journals
eISSN - 2719-8030
pISSN - 2657-8247
DOI - 10.5604/01.3001.0014.1592
Subject(s) - supreme court , law , loan , real property , context (archaeology) , business , estate , real estate , law and economics , economics , actuarial science , finance , political science , history , archaeology
In proceedings for the division of joint property after the cessation of the joint marital property,the court’s main duties include the determination, ex officio, of not only the components, butalso the value of individual components of the property. The determination of the value becomescomplex, e.g. when the property consists of real estate on which a mortgage securing thebank’s receivables under a mortgage loan agreement has been established. This issue has a deeppractical significance and, as a result, it was analysed in numerous judgements of the SupremeCourt. However, at the moment it may be concluded that the line of case law indicating lack ofnecessity to take into account the mortgage burden in determining the value of the real estatehas been established.Authors present the Supreme Court’s evolving approach to the issue of the mortgageimpact on the value of real estate being the subject of division into co-owners’ obligations towardsthe bank under a mortgage loan agreement and the court’s obligation to determine thevalue of assets subject to the division. They also raise the issue of the effects of the division ofassets consisting of the real estate encumbered with a mortgage for settlements of ex-spousesas borrowers in the context of Article 618 of the Polish Code of Civil Procedure.