Pursuant to the resolution of the Civil Chamber of the Supreme Court of March 5, 2003 (file ref III CZP 99/02) it is permissible for one spouse to submit a transfer for his / her benefit during the period of statutory commonality – pursuant to Art. 231 § 1 of the Civil Code – share in the ownership of land, which is separate property of the other spouse, built up with a residential building before entering into marriage, as a result of expenses made by both spouses during cohabitation. Such a view was expressed by the Supreme Court in connection with the legal issue presented to him by the District Court in Krosno. The subject of the case pending before the District Court was a situation in which the spouses, while still cohabiting before entering into a formal relationship, started building a common house, as a result of which the house became the property of only one of the spouses (in the described facts – the husband).
The Supreme Court decided that Art. 45 k.r.o. In the described facts, there were indeed three separate assets between the spouses, i.e. joint property and two separate assets. However, the joint property was irrelevant in the discussed case, since the claims between the later spouses arose even before the marriage was entered into. In such a state of affairs, only the claims of separate estates of the wife and husband were relevant to the case. Thus, the basis for settling the spouses’ claims was Art. 231 of the Civil Code, which deals with the purchase of a building erected on someone else’s land, and the norm of Art. 45 k.r.o. it did not apply at all.
It is worth noting that the Supreme Court presented one more argument in favor of such a resolution of the disputed issue – it was the protection of the housing interest of the spouse, who, being a co-investor of the house built on the land of his spouse, often economically weaker, may live in it only on the basis of a family title that fades with the cessation of married couples (in the discussed situation, the economically weaker party was the wife). The Supreme Court noted that: The possibility of earlier, even before the termination of joint property, the claim strengthens its legal protection, in particular in the event of a conflict between the spouses, which threatens to lose the co-ownership of the property by that spouse, which would lead to the expiry of the retention under Art. 231 § 1 of the Civil Code.