Umowa przewłaszczenia nieruchomości na zabezpieczenie i jej praktyka w świetle wizytacji i lustracji kancelarii notarialnych w latach 2013–2017

Abstract

Transfer of ownership of immovable property by way of security for debt is not a popular means of securing debt repayment. Nevertheless, such agreements are of great social importance, because they regard a significant asset. The goal of this article is to analyse the notarial practice which was revealed in the reports of inspections of notarial offices. The analysis demonstrates that the most important part of an agreement of transfer of the ownership of immovable property by way of security for debt should be proper regulation of how the parties should settle claims in case of the debtor’s failure to repay the secured debt. In the absence of such regulations the notary is obliged to instruct both parties about the legal risks and consequences. The notary should refuse to prepare an agreement in which parties want to deprive an agreement relating to transfer of ownership of immovable property by way of security for debt of its security function, i.e. when they include provisions whereby the debtor gives up his/her right to claim back ownership of the immovable property once the debt has been repaid.