While in a registered marriage, one of the spouses registers the acquired apartment as their property. What pitfalls can await him during a possible division of property? How can legislation protect his interests and the interests of other family members? We will tell you about the most important points that every owner should know in this material.
Registration of purchased real estate
There are different ways to purchase real estate during marriage:
- for one of the spouses;
- into joint ownership without allocating a specific share to each;
- with the allocation of shares - in equal proportions or divided by agreement of the spouses according to the invested funds.
While the family lives in marriage, these moments do not play a big role. But if it comes to divorce and division of acquired property, the principle of registration of property will play a decisive role. How will property issues be resolved in the event of a family breakdown?
Important! Let’s make a reservation right away that we are talking about real estate acquired during marriage. If the apartment was owned by one of the spouses before the marriage, it is considered premarital property and is not subject to division under any circumstances. estate received as a gift or inherited, regardless of the time of its receipt, during marriage or earlier, is also not considered joint property
Registration of acquired property
If the parties do not need consent from the buyer’s legal spouse to sign the contract, then such a document may be needed to carry out registration actions.
The Family Code contains several contradictory articles. Paragraph two of Art. 35 of the RF IC, which regulates major transactions of one of the spouses, allows purchases to be made without confirmation from the husband (wife). And paragraph 3 of this article indicates the need for a written document authorizing a legally significant action with a land plot or house.
Important. To register a purchased property, you will need written consent from the second member of the couple. Papers certified by a notary office are valid.
When there is no written confirmation from the second spouse, two scenarios are possible:
- Documents are accepted for work, but with the condition that the registration procedure may be suspended.
- The official of the registration authority approves the transaction, but with the condition that the necessary document is provided within the time period specified by the resolution.
Consent must be notarized
Registration of an apartment for one of the spouses
Most often, the purchase of an apartment or house is registered in the name of one of the family members, the husband or wife. The reason is a simpler registration process (there is no need for both spouses to complete all the necessary formalities).
Regardless of whose income was the source of funds for the purchase of housing, it will be joint property if acquired during a legal marriage. It should be taken into account that when registering with Rosreestr, you will have to provide a document confirming the consent of the second spouse to purchase living space.
Important! Such a document will not be required only when registering real estate when:
- the apartment is purchased as shared ownership;
- there is a marriage contract, which spells out in detail in what situations and how spouses have the right to dispose of property;
- There is a power of attorney from the second spouse to draw up a purchase and sale agreement.
You can obtain permission from your husband (wife) to purchase an apartment in advance. In this case, two options for such a document are allowed:
- indicating the specific housing (address, other technical data);
- consent to purchase real estate without specifying the object.
Consent from the spouse must be certified by a notary. This is done in order to protect the seller from terminating the transaction through the court if the buyer’s husband (or wife) wants to challenge the purchase and sale agreement and seek a refund.
Obtaining the consent of a husband or wife to purchase an apartment - market practice
In practice, in general, it is extremely unprofitable for the Buyer, as well as his wife, to challenge the completed transaction and declare it invalid. Why? Yes, because in this case the spouses risk losing not only the purchased apartment (common property), but also the money paid for it.
Yes, the court, of course, will apply bilateral restitution (i.e., oblige both parties to return everything received under the transaction) if it is declared invalid. But returning the apartment to the Seller is quick and easy; all you need to do is make a new entry in the State Real Estate Register (USRN). But returning the money to the Buyer is much more difficult, especially if the Seller declares that he no longer has this money (spent it). Then the court will oblige the Seller to return this money gradually, for example, by deducting a certain percentage from his official salary or pension.
If the Buyer’s spouse is of sound mind, then she is unlikely to initiate a challenge to the transaction herself. Although some family conflicts can even lead to such an unfavorable scenario for the spouses. For example, if the husband deliberately hid from his wife the purchase of real estate in his name. Or if, after a divorce, the wife decided to return the money that her husband withdrew from the division of common property by buying himself an apartment.
That is, there may well be reasons to challenge the transaction due to the lack of consent of the spouse.
Realtors here proceed from the principle - “it’s better to be safe than sorry”; there will definitely be no harm from this, but in the event of a conflict between spouses (when one disputes the other’s deal), this document will be very useful. Moreover, it will help not only the Buyer, whose spouse may make a claim, but also the Seller, who is also unlikely to like this gimmick.
Banks adhere to the same principle when issuing mortgages, and they have additional arguments for this (more on this below).
What does a marriage contract provide when buying an apartment? Examples from life.
Features of dividing an apartment purchased during marriage
An apartment purchased during marriage can be registered to one owner. However, you need to remember that registering property rights for only one spouse has its pitfalls. We are talking about the possible division of jointly acquired property.
This situation most often arises in the process of divorce, but even if the family is preserved, it is quite likely that the second spouse will want to secure his right to real estate. And it is not at all necessary that the apartment or house will be divided equally.
If the spouses fail to reach an agreement through negotiations, the size of each share will be determined by the court. The interests of minor children, the existence of a marriage contract and other legally established nuances will be taken into account.
However, an owner who bought real estate while married and registered ownership only in his own name, in certain cases may well claim its indivisibility. There are several reasons for this decision.
Housing was purchased with money inherited or donated by a relative
In such a situation, you will need to take care of two things:
- record the fact of donation by agreement with a notary or make copies of documents on bank transfer of funds from the donor to the recipient. In an inheritance situation, you will need an appropriate notarial certificate;
- record the fact of transfer of funds for the purchased housing from the buyer’s personal account.
If the apartment was purchased in cash, you must have a document confirming the origin of the amount spent on the purchase. This will help subsequently prove that the purchased housing was, in fact, given to one of the spouses and the second cannot claim a share in it.
The apartment was purchased entirely with the owner’s income
If the second spouse is fully supported by the owner of the property without good reason, then the housing purchased during the marriage may go to the person who purchased it.
It should be borne in mind that the court may recognize the following as valid reasons for lack of income:
- the need to care for a sick relative, confirmed by a doctor’s conclusion (certificate of disability);
- the presence of minor children who are being raised by a non-working spouse;
- a serious illness that does not allow the second spouse to work and earn their own income.
Presence of a marriage contract
All possible property disputes can be described in detail in the marital agreement between the spouses. These necessarily include questions about the distribution of shares in real estate acquired during marriage.
A marriage contract is a document of title and is not contested in court, except in cases where the interests of minor children are directly affected. In such situations, the court will focus on family and civil law to protect the rights of the child.
Registration of real estate purchased during marriage in the name of one of the spouses somewhat simplifies the process of its registration, but in the future it can cause many unpleasant moments when dividing property.
Lawyers involved in real estate issues advise deciding on the distribution of shares between spouses even before the purchase. Registration of property rights in accordance with the agreements reached by the spouses will help avoid unnecessary conflicts later.
Consequences of lack of consent
There are situations when the other half categorically disagrees with the acquisition of a house or land and begins to challenge it.
So, for example, when disposing of undivided real estate on the part of a divorced spouse, there is a risk of challenging the purchase and sale within a year by the ex-husband or wife. If there are good reasons, supported by documents, the statute of limitations can be extended. If the parties have not verified the consent of the second spouse, there is a risk that the operation will be recognized as illegitimate due to dishonest waste of money from the family budget.
When registering the transfer of rights to a property from one owner to another, the register provides for the possibility of making a note about challenging the transaction. The recording is made in accordance with the court order if the outcome is positive. In this case, the contract is considered invalid and subject to termination. The seller returns the spent funds to the buyer in full.
If you need to sell land
When do you need to get permission?
So, when should a seller ask his “other half” whether it is worth concluding a land purchase and sale agreement?
- If the plot was acquired during marriage.
- Unless otherwise specified in the marriage contract.
- If there was no agreement on the division of property.
In all these cases, the spouse’s consent must be written, certified by a notary and presented to Rosreestr to register the transaction.
In what cases is this not required?
But there are also exceptions in which the law does not provide for obtaining consent. These include the following situations:
- When the plot was purchased before the marriage was registered at the registry office. The RF IC clearly states that the rules on common property of spouses do not apply to premarital property.
- When the divorce took place and the property division procedure took place.
- When the plot was acquired during the marriage - but under a gratuitous transaction.
The last one is worth special mention. A gratuitous transaction is a type of legal relationship in which one person transfers property or rights to it to another without demanding anything in return. Classic examples of such transactions would be:
- donation;
- inheritance, etc.
The legislation provides that everything received through gratuitous transactions becomes the property of the spouse who entered into it . However, there are situations when they donate not money, but expensive property (for example, an apartment, cottage or plot).
There are no direct instructions in the law here, but the Plenum of the Supreme Court (SC) of the Russian Federation decided at one time (clause 15 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of November 5, 1998 No. 15) that the proceeds from the sale of such property are also not common property. Consequently, consent to the sale of the purchased plot of land in this case will not be required.
How to issue a power of attorney
Permission to purchase and register a plot of land is drawn up on a standard form. The power of attorney lists:
- place and date of signing the consent;
- passport details of the principal and the authorized representative;
- number and place of issue of the marriage certificate.
What follows is the text of the agreement, which expresses the will of the spouse. Additionally, the power of attorney may include clauses that allow the person representing the interests of the couple to perform certain actions:
- represent the principal in state registration authorities;
- obtain certificates and duplicates of all necessary documents from banks and credit institutions;
- pay money for purchased property;
- sign the acceptance and transfer certificate;
- sign a purchase and sale agreement.
Purchase and sale agreement
The list of actions may differ in each individual case. When a purchase is made with a mortgage or with money from state maternity capital, the list must include an item on the possibility of removing the encumbrance.
The document is signed by the principal in the presence of a notary, then the lawyer confirms the power of attorney with his signature and seal. The cost of notary office services ranges from 1,500 to 2,000 thousand rubles. The power of attorney is valid for three years (unless another period is agreed upon). After the transaction has been completed, the document must be kept in case you need to use it as evidence.
Briefly about the main thing
There are a number of cases when the consent of a spouse is necessary to purchase a plot of land and vice versa - when the issue can be resolved independently. Basically, it all depends on the presence or absence of a marriage contract.
If the consent of the spouse is necessary, the registrar may accept the documents for processing, but suspend the process itself until a notarized consent is presented.
If the plot was sold without the consent of the spouse, then the fact of sale can be challenged in court - until the statute of limitations expires.
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Are there any restrictions when purchasing?
The following can be said right away: unlike a disposition, when ownership of a plot is terminated or changed, there are no restrictions when purchasing.
The IC and the Civil Code of the Russian Federation provide that any transaction with property, except for those specifically noted in the law, is considered to be completed at the will of both parties to the marriage. There are no restrictions regarding the purchase, including land.
However, here you need to keep in mind: in cases where the purchase is made at the expense of the family budget, consent may be required. But exclusively within the framework of spending funds - in land purchases, none of the co-owners has the right to tell the purchaser how to dispose of the property.
When making a purchase or sale of a land plot, questions may arise related not only to obtaining permission from the spouses for the transaction. Special publications of our experts on the following topics can answer some of them:
- Features of taxation.
- When should you use the services of a realtor and notary and how much can it cost?
- How does the auction for the sale of state land take place, and how to buy land plots from the state without bidding and at cadastral value?
- Features of transactions with lands for commercial purposes, as well as for multi-storey construction and for the construction of a recreation center, hotel.
