O ograniczonej kognicji sądu wieczystoksięgowego i konsekwencjach jej przekroczenia - na przykładzie uchwały SN z 11.4.2019 r. oraz wyroku Sądu Okręgowego we Wrocławiu z 19.11.2019 r.

Abstrakt

The subject of the analysis is the scope of cognition of the court examining motions for entry into the land and mortgage register LMR and its influence on the possibility of applying the institution of warranty of public faith of land and mortgage registers Article 5 of the Land and Mortgage Registers Act of 6.07.1982; hereinafter: LMRA. The Supreme Court is of the opinion that the land and mortgage register court may correct wrong entries in the LMR and on this basis dismiss the motion for entry of a new perpetual usufructor. According to the Supreme Court, the dismissal of a such motion does not exclude applying the institution of warranty of public faith, however the fulfilment of its premises can only be examined in proceedings regulated under Article 10 LMRA. One has to underline that the acquisition of perpetual usufruct is not possible without the entry. At the same time, the main premise of the claim regulated in Article 10 LMRA is a discrepancy between the legal state stemming from the LMR and the actual legal status of a real estate. If the entry into LMR is not effectuated, buyers of the perpetual usufruct cannot claim that they acquired the right: for this reason there is no discrepancy. Because of that, the court is not authorized to correct any mistakes made during the transfers of entries to electronic land and mortgage registers after the motion for entry into the LMR of a buyer of the perpetual usufruct is submitted. The buyer acting in trust to the entries should have to rely on them and the warranty of public faith. As result, the courts should change their position in relation to the possibility of correcting mistakes, especially ex officio.