Right of superficies to machinery

Czech Republic: The „right of superficies”, which, once entered into the cadastral register, establishes a separate title to machines, marks a departure from the principle that the „surface yields to the ground”.

The new Civil Code has reinstated the principle superficies solo cedit („the surface yields to the ground”) as a part of the Czech legal system, according to which buildings and everything which is permanently affixed to the grounds or to walls represents an appurtenance to and part of the land plot on which they are found.

As a consequence of this principle, not only do buildings of all kind become a part of the land, but also machines and other equipment which is affixed to the walls of such buildings (hereinafter referred to as „machinery”), provided, however, that the machinery is connected to the real property in a manner which satisfies the criteria under which something may be considered ‘part and appurtenance’ of real property. In this respect, the Civil Code stipulates that if something is of such character as to ‘belong’ or pertain to another thing (here: real property) and cannot be separated from that other thing without rendering it worthless, it is part and appurtenance of the other thing.

However, under certain circumstances, the machine may retain its character as chattel (as opposed to a fixture) – namely, if the entry for the real property in the cadastral register contains a notice (made with the consent of the property owner) according to which the property owner is not identical to the owner of the machine. In such an event, the machine (which would otherwise qualify as an appurtenance to and part of the real property) is considered a separate thing within the legal meaning of the term. By entering the „right of superficies” into the cadastral register, the principle of superficies solo cedit is being overridden, and a state of separate ownership of the real property and of the machine is being established.

This will be especially useful in situations in which a party takes enjoyment of a piece of real property in the capacity of tenant or usufructuary, and wishes to install a machine in or on the property in a manner that would normally make it a part of the real property. A notice of the right of superficies, entered in the public record, protects the ownership title of the tenant (and owner of the machine) e.g. in the event that the assets of the property owner become subject to foreclosure. At the same time, the owner of the machine is being enabled to freely dispose of the machine, e.g. to put it up as a pledge or to remove it from the premises at a later stage.

Source: New Civil Code (Act No. 89/2012 Coll.), Sec. 505, 508

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