Under the law in force until December 31, 2013, i.e.  Act no. 513/1991 Coll., the Commercial Code (the “Commercial Code”),  the transfer of real estate included in the purchase of an enterprise occurred when the new ownership of that real estate was recorded in the Cadastral (Real Estate) Register. In contrast, other items in the sale were acquired on the binding date of the contract on the purchase of the enterprise. As such, this legislation held that registering real estate ownership rights in the Cadastral Register had a constitutive effect. 

The current law - sec. 1105 of Act no. 89/2012 Coll., the Civil Code, as amended (the “Civil Code”) – also provides that when real estate listed in a public register is acquired, the property is acquired on the registration of the new ownership in that register. Thus, generally in the case of transfers (based on sales contracts, donations etc.), the listing of ownership rights in the Cadastral Register is again constitutive.

Drawing on this basic principle, the Ministry of Justice’s Commission for the Implementation of the New Civil Law has suggested a number of exceptions. One of these is the sale of an enterprise under sec. 2180 of the Civil Code. Under this provision, a buyer acquires the whole of an enterprise (i) when evidence of the purchase is deposited in the collection of documents of the Commercial Register or (ii) when the relevant contract takes effect if there is to be no registration of the buyer in the Commercial Register. Since the real estate is part of the enterprise, ownership rights to the real estate are acquired along with the whole enterprise. As such, the registration of the buyer’s ownership of that real estate has a declaratory nature.

As with the transfer of an enterprise, in the case of the capital contribution of an enterprise to a business corporation, the title to any included real estate passes at the same time as the whole enterprise. Sec 25 para 2 of Act no. 90/2012 Coll., on business corporations and cooperatives, as amended, provides that when real estate is contributed to a business corporation, the acquisition occurs when it is listed in the relevant Cadastral Register entry. This provision does not apply here, however, since sec 21 para. 1 of the same Act includes a special clause on capital contributions of an enterprise to a business corporation. Under this rule, if an enterprise is being contributed as capital to a business corporation, then that contribution is completed when the relevant contract takes effect (this contract is governed by the new Civil Code provisions on the purchase of an enterprise). The business corporation will, thus, acquire the title to real estate belonging to the enterprise at the time of (i) the corporation’s foundation in the case of a newly established corporation or (ii) the deposit of the contract on the contribution in the collection of documents in cases where an enterprise is contributed to a corporation that already exists.

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