Joint ownership of spouses and good faith acquisition of immovables by relying in the real estate cadastre

Abstract

The paper examines the rules on transferring of immovables in the matrimonial ownership regime against the backdrop of general notion of joint ownership and joint ownership (property) of spouses. It explores whether the party who invokes the principle of reliance in the real estate cadastre shall be protected in the absence of an explicit rule guaranteeing the protection of a good faith acquirer in case of an unauthoriesd transfer done by one of the spouses. In other words, should for the sake of protection of confidence in legal transactions, acquisition of ownership and other rights in rem exceptionally be allowed by the good faith acquirer, provided that general presumptions under which confidence in accuracy and completeness of public registry of rights on immovables are fulfilled, in case where ownership was not inscribed as a joint ownership. The answer has been given in the absence of general rules on joint ownership, taking into account existing rules in the neighbouring countries, principle of reliance in the real estate cadastre and with due regard to the stance taken by the highest judicial body in the Republic of Serbia. The conclusion is that a spouse who is not inscribed in the public registry should not benefit from the protection against the good faith acquirer.