Almost all property acquired by a husband and wife is considered joint property . Therefore, to carry out most legal actions with it, you need to obtain the consent of both owners .
Common property
By law, common property means real estate that was purchased by a husband and wife after marriage . It does not matter which of them spent money on purchasing a house, apartment, etc. There are exceptions to this rule. For example, it is impossible to divide gifts that were presented to one of them specifically.
Please note: if funds were spent from the general budget on repairs or maintenance of the donated property, then it can be recognized as jointly acquired property. This, however, is only possible in court.
The next exception, which makes even property acquired during marriage non-shared, is a prenuptial agreement . Such an agreement specifies the division of property between spouses both during marriage and after divorce. If there is no prenuptial agreement, then even in the event of a divorce, the community property regime continues to apply.
When necessary
Confirmation of a person’s ownership of a house or apartment is a special certificate. The person who is listed as the owner is the title owner . Do not think that such an owner has greater rights than his spouse.
However, in some cases, the title owner needs to have the consent of the co-owner:
- for concluding real estate transactions;
- to conclude a notarized agreement, the object of which is the specified property;
- when executing a transaction that is subject to state registration.
The title owner does not need permission for the transaction in the following cases:
- the house belonged to the person before marriage ;
- the apartment was inherited;
- the property was donated;
- the spouses entered into a marriage contract .
Real estate is often purchased with a mortgage. If the loan was issued by one of the parties even before the marriage was registered, and was paid by the husband and wife together, then the consent of both is required to carry out any transaction.
Please note: consent is often required even after a divorce, since the property is legally still considered common. However, you should know that the law gives only three years . If during this time it is not divided, then the former spouses will have to manage it together .
But Article 35 of the RF IC specifies this norm, determining that in order to carry out a major transaction, permission must be documented . And besides, it is certified by a notary . Otherwise, the sale may be contested.
Spouse's consent to sell real estate without a notary
If the sale or donation of an apartment occurs solely by one of them, then the consent of the second co-owner is required. And it must be notarized.
Help: if the spouse is abroad, consent can be obtained through the consulate.
To obtain permission to sell a shared apartment or house, the spouse must contact a notary. He should provide the following documents:
- passport;
- Marriage certificate;
- TIN;
- papers confirming ownership of property.
The notary, in turn, will prepare the necessary document.
Most often, it is drawn up on a lawyer’s stamp paper and contains the following information:
- the name of the property in respect of which the transaction will be made;
- information about the owners of the property;
- details of the document confirming the marriage between the parties;
- data of a third party (buyer, recipient, etc.);
- period of validity of the document.
As for the validity period of the document, this period is not established by law . Therefore, the deadlines may not be specified in the documents.
- But if the consent specifies a certain period, then upon its expiration the document loses legal force.
- It is important to know: during state registration of a transaction, consent may not be accepted if it was issued more than three years ago.
- The standard consent looks like this:
Cost of notarization
In order for a notary to confirm consent for one of the spouses to carry out a transaction in relation to a shared apartment, you will have to pay about 1000 rubles .
What does selling a house without notary consent entail?
If one of the spouses sold real estate without notifying the other party, such a transaction could easily be considered illegal .
To do this, the spouse whose rights have been violated is required to file a statement of claim. At the same time, he needs to prove his ignorance regarding the transaction. The statute of limitations is 1 year from the day the plaintiff learned about the sale of the house . After this period, the sale cannot be contested.
Can a power of attorney replace consent?
From a legal point of view, a power of attorney and consent to sell real estate are different documents. But, in essence, they are drawn up for the same purpose - to authorize a transaction with common property. Therefore, in some cases, a power of attorney can replace consent.
But when using this document, some inconveniences . For example, the principal can revoke the power of attorney at any time. Whereas it is impossible to revoke consent. The only thing that can be done is to suspend registration actions by contacting Rosreestr. If the transaction has already been completed, then you can go to court.
Lawyers advise not to create additional problems, but to formalize consent. Moreover, the power of attorney is also certified by a notary. Therefore, in the specific case of the sale of common property, there is no point in drawing it up. It is better to issue an indefinite consent, then the parties will not have problems registering the transaction.
If the family decides to sell an apartment or house, the personal participation of the spouses in the transaction is implied. But sometimes only one owner does everything, without providing the consent of the second. This is possible in the following cases:
- legal illiteracy (the parties do not know about the need to formalize consent);
- the spouse sells the property without notifying the wife (husband);
- the procedure for carrying out a purchase and sale transaction occurs contrary to the established rules (without the involvement of lawyers);
- the spouse refuses to give his consent to the sale of the house;
- if in case of actual marriage there is no corresponding stamp in the seller’s passport.
Usually, consent to the transaction is required by the buyers, since they are the injured party if the sale of real estate is declared invalid. Therefore, this is not the buyer’s right, but his responsibility. Otherwise, the second owner can present his claims at any time.
If the seller refuses to provide the consent of the husband or wife, you should not continue with the transaction.
- Issue paperwork in the country in which the person is a citizen. Moreover, it must be drawn up in the official language of this state.
- Confirm your spouse's consent.
- Then translate the document into Russian, including stamps and signatures.
If a foreign spouse permanently resides in Russia, then the permit is issued exclusively at the consulate of his country. Specialists will check all the details and signatures of the parties, and also translate the document into Russian.
Some contradictions in the law force buyers and realtors to require the personal presence of spouses when making a sale. If one of them cannot do this for serious reasons, then the second spouse is obliged to provide appropriate consent.
Video consultation
Professional comment. Sergey Sayapin comments on the situation of purchase of real estate by one spouse without the consent of the other and offers three options for legally carrying out such a transaction.
You might also be interested in:
How to obtain the consent of your ex-spouse for the sale of real estate
Unfortunately, a considerable number of marriages in our country break up. Is it necessary to obtain consent from the ex-spouse when selling an apartment if this apartment was purchased during marriage?
What is joint property and how can it be disposed of?
When spouses get married, they begin to run the household and make purchases together. It doesn’t matter which of them has what income.
All property acquired during marriage will be considered joint and owned by both spouses in equal shares.
If everything is clear with ordinary things, then what about property that is subject to mandatory state registration. Let's take real estate, for example.
Spouses can register an apartment in equal or different shares on the basis of shared ownership.
In this case, all further questions are automatically removed, since everyone has the right to dispose of their share, without forgetting, however, the pre-emptive right of purchase of the other co-owner.
That is, in the case when one of the spouses decides to sell his share, even if many years have passed after the divorce, first of all he must offer to buy it back to his ex-spouse.
Another option for registering a joint apartment provides for the presence of only one owner, who is called the title owner.
The fact that real estate is registered only in his name does not in any way detract from the other spouse’s right to the apartment, because without the consent of the latter, it will not be possible to dispose of the property: neither sell, nor rent, nor mortgage it to the bank.
The most interesting thing is that even after the divorce, the apartment does not cease to be property jointly acquired by the spouses.
It is for this reason that many, immediately after a divorce, try to divide their acquired property by agreement among themselves or in court.
After the division, everyone registers their share in the apartment and disposes of it according to the rules of common shared ownership, as described above.
If the division was not made, then it does not matter who remains to live in the apartment; he has no right to sell it without the consent of the second ex-spouse.
An apartment acquired during marriage belongs to both spouses, even if it is registered in the name of one of them. Divorce does not deprive the non-title owner of the right to this property, therefore his consent is required for the sale of such an apartment.
What property is not joint?
Each spouse, in addition to joint property, may also have personal property, including real estate. These include:
- real estate acquired before marriage;
- an apartment, house or plot received on the basis of gratuitous transactions (privatization, donation, inheritance, etc.);
- an apartment considered the personal property of one of the spouses according to a prenuptial agreement.
The owner can freely sell the objects listed above without the consent of the other spouse both during the marriage and after its dissolution.
Real estate recognized by law as belonging only to one of the spouses is not joint and can be freely alienated at any time without the consent of the other spouse.
How long after divorce is property considered joint property?
The law establishes a three-year limitation period: during this time, all issues regarding the division of property must be resolved. If this was not done, the apartment remains the property of the spouse for whom it was registered. That is, after 3 years after the divorce, the consent of the ex-spouse to sell the apartment is not required.
True, it is worth considering that in cases of division of property, the statute of limitations begins to be calculated not from the moment of divorce, but from the time when the person learned of the violation of his rights. In practice, this applies only to those real estate properties the acquisition of which the second spouse was not aware of.
For example, during the marriage, the husband secretly purchased an apartment from his wife, the existence of which she learned only 5 years after the divorce. In this case, the statute of limitations will be calculated from the moment of receipt of information about the availability of such an apartment by the former spouse. Therefore, if such an object is sold without the consent of the spouse, the transaction could be declared invalid at the request of the plaintiff.
After 3 years after the divorce, consent to the sale of a joint apartment is not required from the spouse if he knew about the existence of this object. Otherwise, it is better to obtain consent, since the purchase and sale transaction may be declared invalid.
Where and how to obtain consent to sell an apartment from your ex-spouse
Current legislation establishes that the spouse’s consent to the sale of real estate must be formalized only by a notary. Therefore, even if you are not on good terms with your ex-spouse and do not want to have anything to do with him, you will have to persuade him to go to a notary to draw up a document.
To do this, it is the ex-spouse who must go to any notary office (your presence there is not necessary) and declare his consent to the sale of a specific property. In this case, you must have the originals of the following documents with you:
- civil passport;
- title documents for the property;
- certificates of marriage and divorce.
The notary will issue the consent on a special form, which he will certify with his signature and seal. Please note that a fee is charged for drawing up a document by a notary.
Having received the official consent of the ex-spouse on a specially notarized form, you can conclude a deal. Consent should be attached to the package of documents for registering the transfer of ownership.
The notarial procedure for drawing up a document precludes the further recognition of the transaction as invalid in court on this basis.
It is important to know that when accepting documents, specialists may not always require the consent of the spouse, which in the future can lead to problems with the ex-spouse after the transaction. To prevent this from happening, provide such consent even if you are not asked for it.
Consent from the ex-spouse is required only for the sale of an apartment considered jointly owned. It is drawn up by a notary and submitted for registration to Rosreestr upon concluding a transaction along with a package of other documents.
How to obtain your spouse’s consent to sell an apartment (part one)
As practice shows, in some families there is not always mutual understanding and decency in the relationship between spouses.
Their actions may be uncoordinated; moreover, there is often selfishness and selfishness that violate the property interests of other family members.
The lack of interaction, in such cases, is compensated by the legislative system of the state, which guarantees the security of property of every citizen.
RIGHTS OF THE OWNER AND THE CONDITIONS OF ITS LIMITATIONS
The owner of the apartment has the exclusive right to dispose of the property in his ownership, however, he is subject to the restriction of obtaining consent from the spouse, provided that the housing was received, privatized or acquired as joint property.
All family members of the apartment owner receive unlimited right of use under a social tenancy agreement. In this sense, they receive equal rights of residence with the owner, but do not have rights to property transactions.
The exception is the owner’s spouse, who automatically shares not only the right to use, but also the right to own the property.
In order for this right to be recognized by law, the following conditions are necessary:
- 1. The marriage must be registered with the civil registry office;
- 2. The apartment must be purchased after marriage, in accordance with the date indicated in the certificate.
If the marriage is not registered, then the partner does not have equal rights of use with the owner, even if he is registered at the owner’s residence address. Moreover, he cannot have equal rights to own an apartment.
Accordingly, the right of ownership is not acquired even in the case where, in fact, the property was acquired through joint efforts, but in a so-called civil marriage or in conditions of cohabitation.
This point will be more than difficult to prove; in practice, such attempts are doomed to failure.
When selling real estate, and, accordingly, an apartment, the owner, along with other documents, is required to present a certificate confirming the registration of the marriage. If the date of purchase of the apartment is earlier than the fact of marriage, then the consent of the spouse will not be required.
An exception to the listed conditions is the presence of a marriage contract, which can be concluded not only when registering a marriage, but also much later. Its powers prevail over all other legal norms. Priority will be given only to the provision of the contract that outlines the algorithm of action in relation to property ownership of the apartment. Respectively:
- 1. A marriage contract may recognize the property right to the spouse’s apartment, regardless of the time of acquisition of the apartment and marriage.
- 2. He can cancel the spouse’s participation in the sale of the apartment, regardless of the time of its acquisition and marriage.
These conditions must be observed as part of the validity of the transaction for the sale of the apartment. Otherwise, the legality of the sale of the apartment may be canceled by a court decision.
The main documents for concluding an apartment purchase and sale agreement are technical and cadastral passports.
Information on the cost of a technical passport for an apartment and the procedure for obtaining it is in our new article. You can find out the documents for obtaining and the cost of a cadastral passport for an apartment using the link.
LEGAL BASIS FOR REQUESTING SPOUSE'S CONSENT IN A TRANSACTION
Public priorities and norms for the use of real estate define an apartment as a material asset belonging to all family members on the basis of the provisions of the Civil Code of the Russian Federation, and is regulated by the provisions of Family Law. The right of ownership is based on the constitutional rights of members of society and has objective characteristics that reflect the right of ownership of jointly acquired property.
The requirement for the consent of the spouse, which is necessary when making a property transaction, is determined on the basis of the fact that the spouses jointly acquired ownership of the apartment presented for sale. It is carried out in accordance with Article 35 of the RF IC.
This document has legal force for the implementation of a transaction, therefore it is drawn up in accordance with accepted norms and standards, on a special form of a notary’s office and certified by a notary.
It is included in the package of documents when registering a transaction at the local branch of the State Register and without it, documents for the transaction will not be accepted. However, the consent of the spouse is not required:
- 1. When selling non-residential property;
- 2. In case of joint ownership, which can replace consent with a power of attorney or both spouses must participate in the transaction;
- 3. When allocating shares in the rights of shared ownership of an apartment, if one of the shares is sold;
- 4.If the apartment was received by the owner by right of inheritance (will);
- 5.If the apartment was received by the owner as a gift.
CONSENT FROM YOUR EX-SPOUSE
One of the most sensitive issues in this regard is the dissolved relationship of spouses. This point is extremely important when making a transaction, not only for the owner of the apartment who has divorced, but also for the buyer.
The fact is that when registering a transaction, the consent of the ex-spouse will not be required; usually the buyer indicates in the registration application that he is not married.
However, the right to own jointly acquired property is not canceled by the fact of the transaction.
The former spouse has the right to demand his share of the transaction, and also to initiate legal proceedings, declaring the transaction invalid on his part. Perhaps his claims will remain unjustified, but the risks can be neutralized by clarifying this issue before making the transaction.
According to official regulations, the statute of limitations is set at 1 year. But this period is not set from the moment of divorce and not from the moment of sale of the apartment. This period will be established from the moment the former spouse learns from someone about the sale of jointly acquired property.
It is more realistic to focus on the statute of limitations of 3 years from the date of divorce, after which the former spouses lose the right to mutual claims for the division of property. However, there are a number of conditions under which the statute of limitations may be waived.
- Accordingly, the best guarantee of the buyer’s financial and property security is to request permission to sell even from the ex-spouse, if it was acquired jointly.
- Download a sample statement of spouse's consent
- SPOUSE'S CONSENT WHEN SELLING SHARE PROPERTY
When selling an apartment that is jointly owned by both spouses, permission may not be required if the shares are distributed according to the law. However, additional inconveniences arise here, which can only be avoided if both shares are sold.
When one spouse sells their share, their consent will not be required, but instead their permission to sell will be required. This is due to the fact that he has a priority right to acquire part of the property distributed with him in shares.
If the actions of the spouses are not mutually agreed upon, then he will be able to create obstacles to the sale of part of the apartment by refusing to give such permission. In such cases, most owners use the Russian Post service, sending a warning about the sale by registered mail with an attached inventory and notification of receipt.
The warning is drawn up by a notary and certified according to all the rules. However, the spouse may refuse to receive the letter, and accordingly, the issue of sale will not be resolved.
This “stumbling block” can arise in any case if the partners in shared ownership of the apartment wish to “freeze” the transaction. Therefore, prices for shares in an apartment are much lower and their sale is associated with a number of difficulties.
The apartment being sold may be additionally encumbered with a mortgage.
In this article you can learn about what documents are needed to sell an apartment with a mortgage and for cash, as well as the procedure for obtaining them. Many owners of encumbered apartments are wondering whether it is possible to sell a mortgaged apartment, the answer to which is contained in the thematic publication.
If spouses share ownership with third parties, then the sale of the share of property is carried out in the usual way.
Permission will be required from the co-owners, and consent from the spouse (not the owner) for the sale.
If both spouses are owners, along with third parties, when selling a share by one of them, it is necessary to obtain permission from all co-owners, including the spouse (without his consent to the transaction).
Note: the permission of co-owners to sell means their passive behavior and lack of reaction to the fact of selling the property within 30 days after their notification.
If both spouses sell their shares in the apartment, which constitute its full property status, then permission will not be required. However, in this case, the consent of both spouses is required to sell the shared property of each of them. It is drawn up in two different documents, each of which states consent to the sale of part of the apartment by the other spouse.
- what documents are needed for temporary registration
ATTENTION TO OTHER DETAILS
Positioning the importance of having the consent of the spouse when selling an apartment, it should be noted that any nuance that violates the requirements regulations can lead to disastrous results.
Judicial practice has numerous examples of how ignoring the importance of a spouse’s consent led to completely unexpected threats to the security of property.
We can consider a very illustrative example.
During the process of registering the sale of shares in the apartment by the spouses, it turned out that they did not know that they needed consent for the sale and did not prepare them. The sellers and the buyer “agreed” with the specialist that they would submit the consent documents later (within a week) and asked to register the transaction. Registration went without incident.
Two years later, the new owner entered into divorce proceedings. Property rights were defended in court, including the right to an apartment.
When considering the fact of acquiring an apartment, which the owner tried to keep for himself, having presented the relevant evidence, the court determined that there was no document on the consent of the spouses when making the transaction and declared the acquisition of ownership illegal, with all the ensuing consequences.
There can be many various accompanying details that call into question the legality of the purchase and sale. Therefore, when checking the documents prepared for the transaction, you need to be very careful - and in no case ignore or reduce the significance of such a document as the consent of the second spouse to the sale.
REGISTERING THE SPOUSE'S CONSENT FOR THE SALE OF AN APARTMENT
According to the law, there are special requirements for a spouse’s consent to sell an apartment. It cannot be compiled in any form. It is drawn up in a notary office according to a standard template and issued to the spouse as a notarized document.
To obtain consent, the spouse must appear in person at the notary's office, with the following:
- 1.Passports;
- 2. Certificates of marriage (divorce).
These documents must be in proper form, without erasures or corrections and without other defects. After explaining to the notary the purpose of the visit and presenting the documents, he will receive a form that will need to be filled out.
To fill out the form, he will be provided with a convenient place where he can concentrate and carefully delve into the questions and answer them, carefully filling out the given form.
It must be borne in mind that all documents submitted to the notary must have the proper form, be clearly written, without errors, corrections or blots.
The completed form constitutes the spouse's consent to the sale. But after it is certified by a notary, it remains in the archives of the notary’s office. And on its basis, the spouse will be issued a document stating that he has drawn up and notarized his consent to sell the apartment.
With this certificate, the owner can take part in the transaction. It must be attached to the package of documents prepared for registering the fact of sale at the local branch of the Federal Service for State Registration of Cadastre and Cartography.
In conclusion, it is necessary to further understand the responsibility of persons for failure to fulfill any requirement for legal transactions.
It is very important to be attentive not only to your documents, for which the buyer and seller are personally responsible, but also to review the competence of all actions of the partner in the property transaction.
This is especially important for the buyer, who will remain in ownership of the apartment along with its history and the history of its purchase. This history will be reflected in the documents based on the data that was reflected during the transaction, and it will be impossible to rewrite it.
Ownership of an apartment can be transferred not only under a purchase and sale agreement, but also through a deed of gift.
Find out how to draw up a deed of gift for an apartment and what documents are needed for this in the materials of the new legal article. The gift agreement can be challenged by interested parties. Read how long it takes to challenge an apartment donation agreement here.
Therefore, the spouse’s permission to sell an apartment is an essential factor in guaranteeing legal security, both of the property transaction itself and of all subsequent rights of ownership and property disposal of the apartment.
Attention!
Due to recent changes in legislation, the legal information in this article may be out of date! Our lawyer can advise you free of charge - write your question in the form below:
Attention!
Due to recent changes in legislation, the legal information in this article may be out of date! Our lawyer can advise you free of charge - write your question in the form below:
Do you need your spouse's consent to sell real estate?
When planning to make a transaction to sell a property, the spouse must study all the nuances of this action and obtain the consent of his wife . After all, if property was acquired during marriage, it is joint.
The wife must agree to the deal. Otherwise, it may turn out that the transaction will not take place or will be considered illegal.
Dear readers! Our articles talk about typical ways to resolve legal issues, but each case is unique.
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In what cases is the spouse’s consent required for the sale of an apartment?
If property was acquired during the period of cohabitation by a family officially registered with the civil registry office, then such property is considered common, regardless of who the papers were issued for . This is exactly the case when it will not be possible to sell an apartment without the consent of the spouse - the law implies that a spouse can sell an apartment only by mutual decision , since this property is extremely important for the whole family.
By the way, the wife’s consent will be required in other cases:
- when the husband was about to enter into a transaction for which registration with government agencies is required by law;
- if the husband intends to complete a transaction, which by law must certainly have a notarial form.
If the husband managed to circumvent the law and nevertheless sold the apartment, then this transaction of his may be declared invalid by the court at the request of his wife, who did not give consent and was not aware of the fact of the sale.
It is worth noting that the situation is similar if the wife wants to sell the joint property after a divorce. She needs to obtain the consent of her ex-husband . If property was acquired during marriage, then the spouses have equal rights to it .
What legislative act enshrines such a need?
The Family Code of the Russian Federation established the need for the consent of the spouse for the sale of real estate Article 35 clause 3.
Standard form of spouse's consent for a real estate transaction
Such a document does not have a strict form or official form . You can write it by hand, but it will look more impressive when printed. This paper should be called “Consent”, and nothing else - this is not an act, not a permission.
Download an approximate sample of a spouse’s consent for the sale of joint real estate here.
At the top right you need to indicate where the document is being submitted. Next, indicate your full name, year of birth, citizenship, passport details - number, series, by whom and when issued. You will need to indicate your identification code number, as well as your residential address.
Place the name “Consent” below in the center.
Since this document is drawn up and signed by the spouse, that is, by one person, then in the paper you need to write below “I, such and such...” and indicate the full name, I give consent to my spouse, (full name), to complete the transaction for the sale of the acquired property. during our marriage, an apartment (house, room) located at such and such an address.
Next, you should write that you trust your spouse with the choice of buyer, price and terms of sale .
If there is a marriage contract, then such a document does not affect or change the legal regime of the property.
Next, you need to put a date and signature (the full transcript is next to it). In this paper, all numbers of the address of the property being sold must also be indicated in parentheses and in words .
Do I need to notarize?
- If the transaction takes place in the presence of the spouse and it is clear that she is aware of the events and can immediately, on the spot, with her own hand and in the presence of representatives of Rosreestr, then notarization is not required .
- If the transaction is carried out by the husband independently, then he must provide the notarized consent of the wife , wherever she is, even outside the state - such paper can be obtained through the consulate .
- The spouse must personally contact any of the notaries , having with her the following papers:
- passport;
- marriage certificate;
- identification code;
- papers on the ownership of the real estate sold by the husband.
- When going to a notary, there is no point in preparing a handwritten version of the consent - the specialist himself will prepare such a paper, taking into account all the rules and requirements of the law .
- This is what the document on the spouse’s consent to the sale of real estate looks like, prepared on stamp paper by a notary:
How long does a spouse’s permission to sell a home last?
The written consent of one of the spouses to sell real estate does not have a statutory validity period. The document can only bear the date of its preparation, in which case the consent is considered practically unlimited.
But there is one important point here: government agencies do not consider such a document valid if more than three years have passed since its preparation . If the period of consent is nevertheless prescribed by the notary, then it is usually 1 year.
Price of the issue when registering with a notary
The cost of drawing up this document by a notary varies slightly, averaging about 1000 rubles.
The RF IC is somewhat contradictory regarding the need for such paper as the consent of the second spouse, and it is not always required when making a transaction . But it is in Rosreestr that they can slow down the matter until this paper appears.
It is interesting to read in the article about what property is jointly acquired.
- The fact is that for safety and insurance (from dishonest spouses) , it is better to prepare this consent, then the other half of the family will not have grounds to challenge the transaction for the purchase and sale of an apartment and seek its cancellation as illegal , and the buyer will not waste time and will not suffer losses .
- You can watch the video about some of the nuances of selling an apartment acquired together during marriage:
Consent to sell an apartment from a spouse: how to draw up, sample
The consent of the spouses to sell an apartment is a mandatory condition when making transactions with real estate that is part of the joint family property. Failure to comply with this rule will not only become an obstacle to the registration of the agreement with the Rosreestr authorities, but will also serve as a basis for legal challenge of the transaction.
As a general rule, the disposal of common family property is allowed only with the mutual consent of both partners. Moreover, if the housing was purchased using general funds, it does not matter to whom it is registered. In this case, any transactions, even free of charge, will require consent from the other half.
However, from an analysis of the norms of the RF IC, it is possible to establish situations where movable and immovable property not only can be in the personal property of one of the spouses, but also does not require permission to sell it. These special cases include:
- property assets, including residential premises, owned by citizens at the time of registration of family relations;
- movable and immovable assets received by inheritance;
- obtaining housing by one of the partners in free transactions;
- the presence of a concluded marriage contract, which provides for a special procedure for the acquisition and disposal of real estate.
Premarital real estate of citizens does not become joint property, unless the spouses themselves, during the period of family relations, want to change the status of such housing. To sell an apartment, not only will the consent of the other half not be required, the housing will be excluded from the division of property during divorce proceedings.
Registration of inheritance rights is of a personal nature, not related to family relationships. For this reason, if a piece of real estate is inherited by one of the partners, the second spouse does not acquire any rights and his consent to dispose of the property is not required.
The gratuitous nature of transactions, as a result of which citizens acquire ownership rights, also does not require approval when disposing of such real estate. Such a transaction, first of all, is a gift, when only one spouse acts as the donee.
Is the consent of a spouse required for the sale of an apartment acquired through privatization?
The disposal of such housing has the following features:
- if during the privatization transaction the ownership title was registered in the name of both partners, either consent will be required or the participation of the second spouse in the sale of housing will be required;
- if at the stage of drawing up the privatization agreement one of the spouses refused to participate in the privatization of the apartment, his consent will not be required for the subsequent disposal of housing.
The fact of refusal to participate in privatization is subject to notarization, during which freedom of expression to make such a decision will be verified. This refusal, in its legal meaning, automatically eliminates the need in the future to obtain the consent of the refused spouse to carry out any transactions with housing.
The marriage contract itself is a special type of transaction, and therefore may provide for any options for the disposal of common family assets that do not contradict the law. Among other things, under the terms of such an agreement, the partners can change the legal status of the real estate, determining the ownership of each spouse.
The marriage contract is subject to notarization and may contain provisions on the procedure for disposing of future property that does not yet actually belong to the spouses. Thus, even at the stage of marriage, citizens can provide for all possible situations related to property legal relations.
If in the marriage contract the apartment is to be transferred into the personal ownership of the husband or wife, the consent of the other half will not be required when disposing of it. In this case, it is necessary not only to consolidate the conditions for the distribution of property between partners, but also to actually re-register rights.
How to obtain your spouse’s consent to sell an apartment? Conducting transactions with real estate without the consent of the spouse is not allowed, therefore the seller must have such permission at the stage of preparation for concluding the contract. Since consent will need to be provided for registration of the agreement with the Rosreestr authorities, it must be expressed in writing.
In addition to being in written form, this document must be notarized. To do this you will need to do the following:
- determine the content of the document;
- independently formalize the consent in writing, or use the services of a specialist notary office;
- pay for notary services;
- obtain written consent with a notarization note.
Notarization of documents involves checking a number of legally significant circumstances. Among other things, the notary must check:
- the identity of the applicant by checking his general passport;
- the legal capacity of the spouse expressing consent to the alienation of property;
- the presence of family relations between the applicant and the seller of the apartment;
- availability of grounds for obtaining consent;
- information about the apartment for the disposal of which consent is being certified;
- compliance of the contents of the document with legal requirements.
What should I write in the consent so that the notary can legally certify this document?
The content of the consent is determined by its intended purpose, and must unconditionally indicate permission to dispose of housing. Thus, this document must include:
- personal data of both married partners;
- information about the document confirming the official registration of family relationships (marriage certificate);
- detailed information regarding the real estate object that is subject to sale after registration of consent;
- information about the buyer of the apartment;
- validity period of consent for the sale of housing.
The inclusion of additional information in the contents of the document is not required, including an indication of the sale price of the object.
Notarization involves only a mark on the document, but also the entry of data about the procedure performed into the notarial register. The date and number from the specified register must be included in the text of the certified consent, or will be contained in the notary’s stamp.
The content of the consent must clearly indicate the property that is being sold by the spouse. If sales transactions are made with several apartments, consent will be required for each object.
The validity period of the consent can be set at the request of the applicant. In practice, establishing such a period is not mandatory, since consent is issued for a strictly defined property immediately before the transaction. If the document specifies its validity period, after the expiration of the period it will be necessary to contact the notary again and re-issue the consent.
Special attention should be paid to the possibility of revoking the spouse's consent . The legislation does not provide for a procedure for formalizing a refusal of a previously issued consent, therefore, if before registering the transaction with the Rosreestr authorities, the seller’s spouse changes his decision, he has the following options for action:
- notify the Rosreestr institution of disagreement with the disposal of real estate objects on the part of the spouse;
- notify your marriage partner of disagreement with the disposal of property;
- apply to the court to declare the transaction invalid if the spouses' Rosreestr authorities did not take into account the cancellation of the previously issued consent.
Since the procedure for revoking consent is not provided for at the legislative level, the decision to formalize it must be made taking into account all the circumstances of the disposal of property.
Download a sample of the spouse’s consent to complete a transaction
The provision of notarial consent will be carried out not only when submitting documents to the Rosreestr authorities or to the Multifunctional Center. In the process of checking the legal purity of the transaction, the buyer may require the provision of a full set of documents for the apartment, including the consent of the spouse.
The greatest number of disputes is associated with the need to issue consent in transactions when one of the spouses not only sells an apartment on his own behalf, but also received a power of attorney from the second spouse. Formally, in such a situation, the text of the power of attorney already expresses the will to dispose of the property.
However, the two documents under consideration have significant differences and independent legal status:
- execution of a power of attorney allows you to transfer to your partner a certain list of powers to dispose of property, while notarial consent establishes only the possibility of selling joint real estate;
- a mandatory element of the content of the power of attorney is its validity period, whereas for consent such a clause is not essential;
- a power of attorney can be revoked at any time by order of the principal, but for notarial consent this rule does not apply.
For this reason, when submitting documents for state registration, Rosreestr officials will necessarily require not only a power of attorney, but also notarized consent.
Another controversial point is the need to obtain consent when disposing of an object of shared ownership . When selling apartments that are in shared ownership, notarization of the alienation agreement is required. At the same time, the partner’s consent to carry out such a transaction will be formalized.
Legal consequences of making a transaction without the consent of the second spouse
The mandatory requirement to obtain consent for the sale of housing may be violated for various reasons both by the seller himself and by officials of the authorized bodies of Rosreestr. In this case, the rights of one of the spouses may be violated by illegal actions to alienate the property, and the transaction may be declared invalid.
For example, a transaction involving the alienation of housing by a wife may be considered illegal if the husband’s consent to the sale of the apartment was not formalized in the form of a notarial document. To do this, the spouse must file a claim in court, and the basis for filing a claim will be the lack of his consent to sell the property.
During the consideration of the claim, the court will establish the following circumstances:
- the presence of family relationships registered with the civil registry office;
- availability of grounds for obtaining consent to sell the apartment, i.e. the property must not be the personal property of the seller;
- absence of the fact of issuing consent to complete the transaction, as well as its notarization.
Note! Even if the spouse himself was present at the Rosreestr authorities when submitting documents for registration of the purchase and sale agreement, the absence of notarized consent will be an unconditional basis for declaring the transaction invalid.
If, following a court hearing, a transaction is declared invalid, its participants are obliged to return everything to its original state. This means that the title to the joint family property must be transferred back to the ownership of the seller.
Recognition of a transaction as invalid on the specified basis does not prevent its completion in the future, provided that the consent of the second spouse is properly completed.
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