Umowna zmiana treści ograniczonych praw rzeczowych obciążających nieruchomość należącą do majątku wspólnego małżonków
The contractual change of the nature of the limited property rights encumbering the immovable property that is part of the community property

Summary/Abstract: The nature of the limited property right that encumbers the immovable property which is part of the joint property of spouses who remain under the regime of the community property (statutory or contractual), may be changed by means of a contract. As the conclusion of the indicated contract requires the consent of the owner of the thing (Art. 248, paragraph 1 of the Civil Code), it is essential to establish whether the spouses may perform the above legal transaction individually, independently of each other. The findings arrived at in the present article became a ground for concluding that a contract that changes the nature of the limited property right that encumbers the immovable property which is part of the joint property of spouses, is a manifestation of the management of this property (Art. 36, paragraph 2, second sentence of the Family and Guardianship Code). The present article discusses the conditions of its validity and efficiency, including the rule of the individual management of the community property established under Art. 36, paragraph 2, first sentence of the Family and Guardianship Code, as well as the exceptions to this rule as stipulated by the act.

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