If it is necessary to divide the joint property of the spouses (e.g. due to divorce), the issue of determining the value of the property acquired by the spouses on which they jointly established a mortgage may arise. This problem has often been considered by the Supreme Court. In the decision of March 13, 2020, file no. III CZP 64/19 of the Supreme Court ruled that in cases relating to the division of marital property, the value of the mortgage, as a rule, does not affect the value of the common property allocated to one of the spouses as a result of the division.
The court ruled that when selling the real estate, the price determines its market value, and the mortgage burden only affects the manner of disposing of the price by paying the debt in order to terminate the mortgage.
The mortgage is an accessory, as it secures the debt and may exist separately from the personal obligation to satisfy the debt also from other assets apart from the encumbered real estate. The sale of the mortgaged property is therefore irrelevant to personal liability for the debt.
Thus, the Supreme Court confirmed the earlier interpretation concerning the determination of the value of the real estate encumbered with the mortgage. According to it, the mortgage on the real estate of the former spouses does not affect the market value of the real estate, taken by the court as the basis for determining the amount of repayment or additional payment due to the spouse who does not receive real estate or the right to the premises. According to the court, the division of joint property does not affect the maintenance of the joint and personal obligation of both spouses to repay the loan, even after the division of the joint property.
The Supreme Court also recalled what circumstances are of legal importance in determining the value of real estate. He pointed out that when determining the market value of the real estate, the real estate appraiser takes into account, in particular, the purpose of the appraisal, type and location of the real estate, intended use in the local plan, the degree of technical infrastructure equipment, the state of its development and available data on prices, income and features of similar real estate.
At the same time, the court recalled that it is possible to pursue a claim between spouses for the return of the amount of a liability secured by a mortgage, paid by one of them after the decision on the division of the joint property becomes final.