Very often with a contract for donation in the form of a notary deed, real estate is transferred, especially when it comes to the transfer of property between relatives. Property is transferred by donation, because it is the cheapest option when dealing with relatives in a straight line. With the donation contract, the gifted person acquires immediately and free of charge the donated property and this property becomes his personal property, whether at the time of the donation he is in civil marriage or not - that is, the other spouse does not acquire any of the donated property.
However, the donation also has inconveniences. It may be challenged by people in favor of whom the law provides for a right to a reserved portion of the estate. Does that mean? It means that if the donor has donated property and left a descendant and/or spouse after his death, the descendants and the spouse can challenge the donation up to the amount of their reserved part by law. Disputes may be made within 5 years of the donor's death. Upon expiry of this period, the action is time-barred and if a claim is made to challenge the donation, the donor may reject the claim by making a limitation order.
People entitled to a reserved part may only bring their claims in court to recover their retained portion.
Often, once they have understood the danger of a person with a right to conservative party contesting the donation and requesting a restoration of their reserved part, the donor and the gifted wonder what to take so as to protect the gifted by the claim of the right-holders.
To this end, they rarely take transfers of property. According to Art. 88 of the Obligations and Contracts Act (APA) / termination of contracts subject to registration does not affect the rights acquired by third parties before the filing of the application. However, if the transactions are carried out between the same people, the surviving heir will be able to challenge the transfer of the property and exercise its right to restore the retained portion of the estate.
Even the gifted person to sell the property to a third person does not solve the problem. In this case, the donor may be ordered to pay the person with the right to reserve the value of the reserved part.
What can be done to solve the problem is to thoroughly investigate the legacy of the heir. In the case that the person has owned other real estate with a value relevant to the donated property, this means that the heir with a reserved portion can receive a share of the inheritance corresponding to its part as the donor renounces the estate. An additional possibility to divert the claims of the other heirs is if they were donated to the general survivor's life, or if they had a property under his will, if any. As a third option, to suspend potential future claims from the other heirs, especially if the donation is in agreement with them and they do not claim the estate of the deceased, is to either forgo a legacy of their inheritance or sign private documents with them recognize that they have received movable property and / or money that has satisfied them for their reserved portion by law.
In view of the above, in the course of real estate transactions, consideration should be given to the way in which property is transferred in respect of a property in view of the legal consequences thereof.