Newsletter (not only) for brokers - Land registration and digital technical map, Don't forget about..., Obligation of investigative activity?

Land plotting and digital technical map

When arranging the sale of land for building purposes, it is important to find out whether basic utilities such as water, sewerage, electricity or gas are installed on the land.

It should now be possible to verify the existence of utilities online, via the digital technical map, which is due to be launched on 1 July 2024. This removes the need to apply to individual utility managers for a statement on the existence of utilities in the vicinity of the land in question.

The mere existence of networks in the vicinity of the land does not guarantee that the landowner will be able to connect to them. In practice, for example, insufficient sewerage or water supply capacity may be a constraint. In some cases, construction may be linked to the extension of the sewage treatment plant, etc. In order to verify the possibility of connecting to the utilities, you must ask the owner of the technical infrastructure for an opinion on the possibility of connection.

Under the new Building Act, this request can be made online via the builder's portal, and the operator will be obliged to respond within 30 days, or in more complex cases within 60 days.

Useful advice: Don't forget the garages, driveways, basements...

In the world of real estate, we often encounter cases where there is a need to transfer multiple properties that are functionally connected but have different ownership regimes, and are therefore registered on different title deeds. A typical example is a garage or a cellar which the owner of a residential unit uses believing that it belongs to the unit. In reality, however, these spaces may be part of a separate non-residential unit to which the owner of the flat has a co-ownership interest. It is not a share in the common parts that is related to the ownership of the dwelling unit.

It is important that this co-ownership share, which according to the agreement of the co-owners represents, for example, a garage space, is transferred together with the apartment unit, otherwise it will remain in the ownership of the seller. It is not uncommon that the interested parties do not realise this "legal detail" and the new owner of the flat starts to use the garage space without any legal reason. Correcting this situation can often be complicated.

But how do you find out that the seller owns something else functionally related to the unit in addition to the main property? An ownership survey can be a useful tool. It will alert you to the fact that the seller is located in more than one LV in the cadastral area in question. This overview can be obtained via (paid) remote access after entering the personal data of the owner (name, surname, birth number).

The parties to the real estate transaction should clarify what all is subject to transfer in the purchase contract at the latest. However, it is ideal to have the broker verify this at the beginning of the real estate transaction, as the subject of the transfer is usually already dealt with in the brokerage or reservation contract. This will avoid unnecessary complications.

Decision: Duty to investigate when buying real estate?

To what extent can one rely on the truthfulness and completeness of the entries contained in the Land Registry? Does the buyer have a duty to investigate their accuracy before purchasing the property? This was considered by the Supreme Court in its decision of 27 October 2020, Case No. 22 Cdo 2087/2020.

In that case, it was a relatively common situation in real estate practice. The husband was registered as the sole owner in the land register, although the property was part of the joint property. Can the buyer be blamed for not verifying the actual status despite the registration? The Supreme Court concluded that the purchaser must exercise the ordinary care which, in the circumstances and nature of the case, may be required of anyone.

This caution does not include a duty to take active steps to ensure that the status of the entry in the public register is in accordance with the true legal position. This does not apply where there are objective circumstances which raise doubts as to the consistency between the status recorded in the public register and the actual legal situation. In such a case, it is up to the purchaser to verify whether the entry in the public register corresponds to the actual legal situation.

Such an objective circumstance could be, for example, a registered note of the disputability of the registration at the request of the omitted wife or a notice indicating that the registration of such a note (seal) is pending.

Something else would be a family household under section 747 of the Civil Code. The latter is not registered in the Land Registry at all and is therefore also invoked against the protection of the good faith of a third party. However, that is a matter for another time.