Property rights held by two or more owners who share the common property are not determined and, as a rule, cannot be alienated while the common property regime lasts. Our law recognize several forms of joint property, namely: joint property of married and cohabiting partners; common property of family members; co-heirs’ property before partition and common indivisible property on common parts of the building.
When concluding the Real Estate Purchase Agreement, often, there are questions – how to act when the subject of the sale is Real Estate that was acquired during the marriage, that is, in which ownership regime is the real estate in questions? All property acquired during the marriage is joint property of the spouses. However, in the Republic of Serbia in the previous decades, it was often the practice to register only one of the spouses as the owner of property rights in the public books, and under the influence of the patriarchal society, it was usually the husband. A problem in such situations could arise if a person listed in the public books as the owner of the real estate decided to sell the real estate without the prior consent of the spouse. The spouse who did not give his consent to the conclusion of this contract would have the right to initiate a civil proceeding before the court with jurisdiction over the matter, in which he would request the determination of the nullity of the Real Estate Purchase Agreement with the request that he, as a co-owner, did not agree to sell the real estate.
In order to avoid these and similar situations, the Law on the Procedure for Enrollment in the Cadastre of Real Estate and Lands was passed, which provided for the obligation of the public notary to verify the marriage of the contracting parties by inspecting the marriage register and other publicly available data before certifying the contract for the sale of real estate.
If the public notary, by inspecting the public documentation, determines that the seller was married at the time when he acquired the immovable property that is the subject of the sale, he will request that the seller’s spouse join the contract as a consent giver for the conclusion of the contract, or that the same, by means of a separate certified statement agrees with the conclusion of this legal transaction.
If the buyer is married, the public notary will ex officio give an order to the cadastre to register the property as the joint property of the buyer and his spouse, unless a statement from both spouses is submitted to the cadastre that in the specific case it is not joint property, but separate property of one of the spouses, or if the spouses acquire co-property, with certain shares, by the document on the basis of which the registration is made. If the immovable property is already registered in the cadastre of only one of the spouses, joint property will be subsequently registered in the cadastre based on the statement of both spouses that in the specific case it is joint property.