Once again European Certificate of Succession (ECS) in the Czech Republic: registration based on a German notarial record and acquisition in good faith based on an ECS are possible.
With this article we follow up on the outlook of the article from January 2020, in which we reported on the successful assertion of German ECS in accordance with the European Succession Regulation (Regulation (EU) No. 650/2012) before the Czech courts against decisions of the Czech cadastral offices („ECS News: we win at courts in Prague and Olomouc; amendment to the Cadastral Decree effective of January 1, 2020”). At the beginning of April 2020, the District Court in Prague granted all our claims, even though no inherited real estate had been specified in the submitted ECS – it was always the same ECS. But this is precisely what the Czech Cadastral Act requires. In addition, as of 1/1/2020, a declaration of honour can be submitted alongside the ECS – if this is submitted and a valid ECS is presented, the cadastral offices register the heirs without any problems. Exactly the same problem with ECS where no property specification in Annex IV was made (this is still not issued by the courts in Bavaria and Thuringia) exists with cadastral offices at least in Slovakia, Lithuania, Croatia and Hungary: to our knowledge, however, the problem has not been solved either judicially or legislatively in these countries. The ECJ has not yet ruled on this issue either.
Two rulings by the District Court in Prague (Krajský soud v Praze) of April 2, 2020 have now clarified whether a German notarial record on the transfer of Czech land plots within the meaning of Art. 59 f. of Regulation (EU) No 650/2012 is sufficient, and a further ruling by this Court on the same day confirmed that it is possible to acquire a Czech real estate in good faith on the basis of a German ECS under Art. 69 (4) of Regulation (EU) No 650/2012, even if the real estate is not specified in the ECS at all.
Presentation of a German notarial record
The District Court in Prague replaced the refusal of the Cadastral Office to make an entry on the basis of a notarial record with its judgment, and ordered the registration. In the meantime, the Cadastral Office has also complied with this order. The reason was simple: the Court considered a division of property in a German notarial record as another document in the sense of Art. 59f. of Regulation (EU) No 650/2012 – in combination with a valid ECS. Because the land plots were registered in the notarial record, the Cadastral Act was also complied with.
Acquisition in good faith of a Czech real estate on the basis of a German ECS in accordance with Art. 69 (4) of Regulation (EU) No 650/2012
The second lawsuit was more complicated for the District Court in Prague because in this case there was a German ECS which did not contain any specification of the land plots and because a third person, i.e. a purchaser, referred to the acquisition in good faith of a Czech real estate according to Art. 69 (4) of Regulation (EU) No 650/2012 – this provision corresponds to the acquisition in good faith on the basis of a certificate of inheritance pursuant to §§ 2365f. of the German Civil Code. Although the real estate was not specified in the ECS, the Court upheld our complaint against the refusal of the Cadastral Office to make an entry and ordered that the acquirer from the heirs who were not entered in the Czech Cadastral Register be entered directly as the owner, even though the ECS did not contain the land plots.
Still no clarification by the ECJ, but several options for practice
Unfortunately, the ECJ has not yet clarified any questions regarding the specification of assets in the ECS, i.e. neither the question of whether a court must specify the assets upon request, nor whether the cadastral offices in countries where the Cadastral Act requires the specification must nevertheless carry out the registration. In practice however, in countries that do not have the emergency solution by a declaration, as the Czech Republic does, there is a possibility to bypass the presentation of the ECS to the cadastral offices: if there are several heirs, a notarial record can be drawn up in which the heirs divide the real estate among themselves – this naturally requires several heirs and several land plots – or the heirs transfer the land plots to a bona fide third party who then applies for registration directly to itself. However, in the event that only one sole heir inherits real estate and wishes to keep it, the possibility of obtaining registration by presenting the additional declaration is currently only available in the Czech Republic. Otherwise the transfer must be sued before the Czech courts, but also before the courts in countries like Slovakia, Lithuania, Croatia or Hungary. Outside Bavaria and Thuringia, there is also the possibility of insisting with the German district court that the real estate be registered in the ECS in Annex IV. However, this must be done at the very beginning of the procedure, with reference to the use of ECS in countries such as the Czech Republic, Slovakia, Lithuania, Croatia or Hungary.
Regulation 650/2012/EU (Czech)
Cadastral Act (Act No. 256/2013 Coll.) (Czech)
Cadastral decree No. 357/2013 Coll., as amended by decree No. 301/2019 Coll.