Nieruchomości@ (Jun 2020)
The 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
Abstract
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, but also the value of individual components of the property. The determination of the value becomes complex, e.g. when the property consists of real estate on which a mortgage securing the bank’s receivables under a mortgage loan agreement has been established. This issue has a deep practical significance and, as a result, it was analysed in numerous judgements of the Supreme Court. However, at the moment it may be concluded that the line of case law indicating lack of necessity to take into account the mortgage burden in determining the value of the real estate has been established. Authors present the Supreme Court’s evolving approach to the issue of the mortgage impact on the value of real estate being the subject of division into co-owners’ obligations towards the bank under a mortgage loan agreement and the court’s obligation to determine the value of assets subject to the division. They also raise the issue of the effects of the division of assets consisting of the real estate encumbered with a mortgage for settlements of ex-spouses as borrowers in the context of Article 618 of the Polish Code of Civil Procedure.
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