Cohabitants splitting up – your apartment or mine? Was the apartment acquired through a simulated transaction?

After splitting up with a cohabiting partner, is it easy to take his or her apartment away through the courts? Is it easy to prove that the purchase of the apartment was a simulated transaction and that the aim was in fact to buy it in the name of the other cohabitant? What does the evidence look like in cases of this kind?

These were exactly the questions put to the court in a dispute I recently handled and won.

To make things clearer, here is a brief summary of the case: the claimant went to court with a made-up story, trying to convince the court that, while he was living with and sharing a household with my client, it so happened that he found an apartment to buy, but on the day of the notarial transaction he lost his passport and, trusting his cohabiting partner, asked for the transaction to be registered in her name, and that later there was supposedly an agreement that once the passport turned up the apartment would be registered in his name. On that basis, he asked the court to declare the transaction simulated, to recognise his rights as the buyer in place of the female buyer, and to establish that it was the claimant who had acquired ownership of the apartment.

My client did not agree with the claim. To prove her position in the case, we had to roll up our sleeves with the evidence, because all of it was constantly disputed by the other side, and new stories that never happened were concocted on its basis (with attempts to do so even through witnesses). The parties disputed every aspect: who found the apartment, who paid the seller in cash outside the notary's office, who paid the notary, who looked after the apartment, what condition it was in when bought, etc. On top of that, in an attempt to mislead the court, the claimant brought a friend into the case (as a third party), who came up with several more versions of the apartment's sale, after which it was unclear which one was more truthful. For example, the third party stated that he himself had already bought the apartment many years earlier, simply had not registered it in his name, and had been an intermediary who helped organise the disputed transaction. Later he stated that before the disputed transaction he had already sold that apartment to his friend, the claimant (an apartment that he had not even registered in his own name). The seller of the apartment was also brought into the case, and she essentially supported only the position I represented. Witnesses were examined, and the parties' explanations were heard several times (as the stories about the sale of the apartment multiplied with every hearing).

But none of the constantly invented stories convinced the court. The court dismissed the claim in full.

As is well known, a simulated transaction is null and void because of a defect in an essential element of the transaction – the will of the parties – since the will expressed in a simulated transaction does not correspond to the parties' true intentions. In such a case, two agreements must be concluded: an outward (misleading) one and one that is not disclosed (the “secret” one). A simulated transaction is intended to conceal another transaction. There may also be a link here with so-called legal simulation.

Only my arguments convinced the court, and the case was won. Since buyers had already been found for the apartment before the case was brought, a preliminary sale agreement had been signed, and the claim had been accompanied by a request for an “attachment”, which the court had granted, the new buyers of the apartment have presumably breathed a sigh of relief, since they will finally be able to complete the transaction and live in their dream home.

This is a case that shows how completely uninvolved people can get caught up in a whirlpool of litigation and be unable to complete the purchase of an apartment. If only that information were placed somewhere in public registers: e.g. cohabitants, spouses, etc. are separating.

LAWYER