In what cases is the spouse's consent required to purchase an apartment? Peculiarities of registration of the spouse's consent to the purchase of real estate Notarized consent of the spouse to purchase
Do I need my spouse's consent to buy real estate? This question arises from almost every person who is going to buy an apartment, house or other object. And if everything is very clear with the registration of the notarial consent for the sale of property, then the need to draw up such a document upon purchase causes many disputes among lawyers and realtors.
Where do the contradictions come from if there are laws that are passed for everyone? Alas, it is in the current legislation that not everything is so simple. Let us consider in more detail the points of the articles of the laws to which opponents refer in disputes.
Family Code Says
- Clause 2 of Article 35 of the RF IC assumes that a transaction concerning the disposal of joint property is made with the consent of the second spouse. However, there is a possibility that the transaction will be declared invalid if requested by the second spouse, who will need to prove in court that the spouse entering into the transaction knew or presumably should have known about the disagreement of the other spouse to conclude the transaction.
- According to paragraph 3 of the same article, for the conclusion of transactions related to the disposal of real estate, and transactions certified by a notary and / or registered in the manner approved by law, the consent of the spouse, duly certified by a notary, is required. Without providing notarial consent, the second spouse has the right to demand termination of the concluded agreement in court within one year from the date of receipt of information about the concluded transaction.
Examining the paragraphs of Article 35 separately, one can draw completely opposite conclusions.
- Following clause 2, the second spouse is not required to prove their consent to the transaction. For the counterparty participating in the transaction, there is a "presumption of consent".
- According to clause 3, real estate is considered a special category of property to which the presumption of consent cannot be extended.
So is it necessary to draw up a spouse's consent to buy an apartment? Let's try to sort out the contradictions.
Analysis of contradictions
After examining paragraph 3, we can distinguish three signs that deduce the transaction from the assumption of consent:
- Disposal of real estate.
- Certification from a notary.
- The need for state registration.
- Only the seller can dispose of the real estate. Therefore, the purchase of an apartment is not included in the concept of "disposal", and the buyer only disposes of funds.
- Since 2000, there is no need for notary real estate transactions.
- Due to the changes that took place in March 2013, real estate transactions are not subject to state registration. Only the right to real estate is registered.
Consider each of the signs
Summary: If you follow only the letter of the law, then most lawyers will agree that consent to the purchase is not needed. However, in this situation, there is a circle of people interested in the availability of this document.
Who needs consent
When going to conclude a deal, most realtors will ask you to provide your spouse's notarized consent to purchase an apartment. This is due to the fact that realtors are not interested in terminating the deal in the future. The developer or seller can also demand this document, protecting their own interests.
The state registrar will also face obstacles. If the package of documents submitted to the registrar does not contain a notarized consent, then the registrar can make an appropriate note, and subsequently has the right to refuse state registration.
There are two options for solving this problem: to prove your case in court or to issue the consent of your spouse. It is enough for the second spouse to visit the notary himself at a predetermined time and, having provided the marriage certificate and passport, sign the corresponding form. The presence of the other spouse is not required. The price of the document is about 1000 rubles.
What information does the document contain
Registration of notarial consent takes place according to the generally accepted model with the obligatory indication of the following information:
- Place of preparation of the document and date.
- Name of the spouse giving consent, indicating the passport number and registration address.
- Name of the spouse receiving consent, indicating the details of the marriage certificate.
- Purchase object. It is not necessary to indicate a specific apartment.
- Name and signature of the consenting spouse. Filled in by hand.
- Place and date of registration of the document.
- Name of the notary who certified the document.
- Registry number.
- Name and signature of the notary.
- Printing.
A married citizen is not completely free in matters of purchase and saleand many who want to buy or sell real estate do not know for sure when to hire a notary. It turns out that there are some nuances in matters of legal paperwork that are better known in advance.
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When is the spouse's consent required for transactions?
If the transaction takes place in violation of the requirements of the law, then the second representative of the couple will be able to challenge it, having been declared invalid through the court, so the law must be observed in any case.
When making an act of purchase, it seems that it is not necessary to confirm the consent of the second half (clause 2 of article 35 of the SK), but squandering the family budget without the knowledge of the spouse is an action that can lead to unpleasant consequences in the form of litigation.
Spouses should discuss important purchases together and make the final decision only mutually, it is impossible to go against the opinion of the second member of the couple; when dealing with real estate, notarial consent is a prerequisite (Clause 3 of Article 35 of the RF IC).
In addition, to have on hand notarized document of spouse's consent to the transaction necessary for all types of transactions, where:
- state registration will be needed;
- you will need a notarized one.
Notarization is required for transactions listed in Art. 339, art. 584 GK:
- mortgage agreement;
- property pledge agreement;
- rent agreement.
All transactions registered with state bodies concern the whole family, therefore, ignoring the opinion of the second member of the couple is unacceptable. These are such deals:
- sale of residential buildings or premises;
- mortgage agreement;
- sale of the company, firms, workshops, etc .;
- rental Property any purpose;
- donation real estate.
All these types of transactions should not be allowed by the other spouse to take their course, even if the rules of notarized consent do not require.
Important! Objects privatized even during the period of marriage do not require the consent of the spouse in transactions with them.
The fact is that privatization is an act of goodwill of the state in relation to a citizen as an individual person, it is a targeted act, and the second spouse cannot have any rights to this property.
If there is a tendency in the marital relationship to instability, then it is better to play it safe for each of the couple and support the transaction with the consent of another, having certified the paper with a notary, even if the law does not strictly require it.
Sample notarized document
The meaning of such a document is to record the awareness of the second spouse and his lack of objections to the commission of the act of purchase and sale.
The data of a specific real estate object - address, area, etc., it is not at all necessary to register in this document; it is enough to agree in principle to formalize the sale and purchase of real estate in a specific locality or area.
Such a document is legal, therefore it is not written in free form on any sheet, but printed on special paper, which is available to notaries.
It is called "Consent", under this name, on the left, the settlement, its affiliation to the country is indicated, on the next line on the left - the date in full words.
Below from the paragraph have a narrative, in which they write in the first person: I, citizen such and such (completely), date and place of birth, gender, passport details (with information on the date of issue and the authority that issued the issue), then - data on the place and date of registration, indicating the subdivision code /
- marriage certificate, its number, date of issue and the name of the authority that issued this document,
- the number of the deed entry, for the purchase for the price and on the terms at his discretion, of any apartment located in (name of the settlement).
Below, on a new line, the notary writes that the signatory of this document has been explained the meaning of Articles 34.35 of the RF IC... This is followed by the signature of the person who agreed to buy the apartment by the spouse, with the decryption of the full name.
The date and details of the notary are also indicated, and mandatory decoding of the cost of services... The notary's signature completing this legal paper is sealed.
"Consent" is registered by a notary and the number is entered into this document. It is not necessary for both spouses to appear before the notary; it is enough if the one on whose behalf the paper is drawn up arrives.
The main thing is that this person did not forget to bring your passport and... If "Consent" implies the purchase or sale of a specific property, then you also need documents relating to property rights of this object.
How much does a notary service cost?
For the execution and registration of "Consent" the fee is approximately 1200 rubles.
This amount, scanty in comparison with the possible material damage that an unscrupulous marriage partner can cause to a family, cannot stop a reasonable person in his intentions to notarize consent.
The period of validity of the spouse's consent to the transaction
The law does not limit the period of validity of the spouse's consent to the transaction no specific time frame, but generally accepted norms in the notary do not imply legal force if the document is older than three years.
For the purchase (sale) of a land plot
The answer to this question is ambiguous. For the purchase of a land plot by the registrar, the question of the need will not be put (the requirement was canceled from 01.03.13), so the deal in this case will take place without unnecessary delays.
When it comes to sale of land, the notarized consent of the spouse is required, since the registration rules provide for the presence of this document.
When buying land, a person is not required to present a document confirming the consent of his spouse, but for his personal benefit and further trouble-free ownership of the site, he must take courage and ask the seller to show the stamp in the passport about the presence of a marriage.
If the seller is married, then he must have the consent of his wife, and if divorced, then the date should be compared with the date of purchase of the site. If a land acquired during matrimony, then such property legally belongs to jointly acquired, and the ex-spouse can lay claim to it.
In order to avoid problems in the future, it is necessary that the seller notify the ex-wife and agree with her on this issue; the disagreement of the former half will call the legality of the transaction into question, so the consent of the former wife of the seller is needed.
So that such problems do not arise, in case of divorce, it is desirable by the court then the issue of notarial consent will not arise.
For car sale
It's easy to imagine such a situation: a family lives, the car was purchased during marriage, issued to her husband. A man drives her, has documents for her and considers her.
But by law sell a car without the notarized consent of the spouse he can not, since this property is acquired jointly.
Even if the sale takes place, then the spouse, having learned about the transaction, has the right to demand that she return half of the money received from the sale of the car... The buyer will also be drawn into the process.
How long does it take to dispute a transaction?
Having learned about the transaction without his consent, the spouse has the right to go to court with a claim to invalidate it within one year from the date when he learned about the completed act of sale and purchase of jointly acquired property.
Termination of the contract will take place if the injured spouse proves his case to the court - complete ignorance of the intentions of your other half.
What are the reasons for the lack of consent?
It is assumed that in a normal family the spouses make the decision to sell large property together... However, in practice this turns out to be not entirely true, and the spouse's consent may not be for such reasons:
- people do not know about the need to draw up such a document;
- the spouse deliberately hides his desire to sell property;
- the transaction is drawn up by insufficiently competent people without the presence of a lawyer;
- the spouse strongly objects to the deal and does not wish to formalize consent;
- if the passport of the seller, who is actually legally married, does not have a marriage stamp, then even an official who knows the law will not require his consent.
Any transaction - sale, purchase, donation, exchange and others should be taken seriouslyby thoroughly studying the law. Only the presence of a third party in the form of a qualified specialist notary will help avoid flaws in the design, which can lead to the recognition of the transaction as invalid.
In what cases the spouse's consent is required, and in what cases it is not when buying real estate, see the video:
Most of us are firmly convinced that the notarial consent of the other half or the presence of a spouse at a real estate transaction is necessary only when selling property that was acquired and is common property during the marriage.
Let's look at another situation, whether the consent of the spouse (s) is required to buy an apartment.
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Until recently (until 03/01/2013) all real estate transactions went through state registration. After that date, the need for it has disappeared, and they only apply to Rosreestr to obtain a certificate of ownership, issued for the new owner.
Thus, the only statutory act that controls the actions of spouses when buying real estate is the Family Code, namely Article 35 "Possession, use and disposal of the spouses' common property."
The interpretation of this document is very contradictory:
- The second paragraph of the above article says that no written and notarized document for the purchase of real estate is required from the spouse ... Since, being married, the parties de jure (in fact) jointly dispose of the acquired property, and a priori one of the spouses acts by mutual consent of both parties.
- But in the third paragraph of the same article it is said that for the notarization of the transaction or its registration, the “certified” consent of the second party is required ... Moreover, the absence of such a document may serve as a reason for recognizing the completed procedure as invalid. On the grounds that the spouse did not know about the purchase of real estate or expressed their protest, and their "point of view" was not taken into account.
Experts are also not always unanimous about the interpretation of the above law.
That is, such a document (the consent of the spouse) does not seem to be needed, but its absence is fraught with many complications in the ownership of property. Since at any time a claim from the second half with expressions of protest may become a reason for the cancellation of the transaction.
In what cases is the consent of the spouse (s) not required to purchase an apartment?
Although there are indeed situations where this document is not necessary:
- When it comes to buying commercial real estate (in a non-residential fund);
- When a dwelling is initially acquired as joint property (this is also reflected in the certificate of ownership);
- Either the apartment is purchased and registered to the spouses with a clear indication of the fractional ownership (1/5 - to the wife, 4/5 - to the husband, for example);
- If a power of attorney is issued for one of the spouses by a third party to purchase real estate on his behalf. In this case, a certified expression of the will of the person who issued the document and the person who acts on his behalf is sufficient. No duplicate documents are required.
Do I need a notarized consent of my spouse to buy an apartment?
Real estate experts strongly advise obtaining such a document certified by a notary when making a transaction.
And yet, why should a spouse agree to buy an apartment? Buying an apartment is an important and responsible step for a family, both emotionally and materially (see). Any litigation over joint property can cause family breakdown.
Therefore, documents mutually signed during the transaction are very important:
- During transactions with "problem" real estate, they confirm the honest, mutual intention of the family to buy an apartment. They indicate that between one of the spouses there was no conspiracy with the scammers to obtain benefits by deceiving the spouse (s).
- None of the spouses in the future will be able to challenge the completed transaction, have claims to the other party on the fact of its completion.
Sample of consent of a spouse (spouse) to purchase an apartment
The document is issued by a notary, on a special form and contains the following information:
- Name of the spouse or spouse;
- Passport data;
- Series, number, by whom, when, where the marriage certificate was issued.
Below these data must be the signature of the "consenting" spouse, certified by a notary (signature and seal). The registration number of the document is also indicated.
The certificate may indicate the address of a specific property or simply express approval for the purchase of any residential premises, for example, in St. Petersburg.
What is the procedure for obtaining the consent of a spouse (s) to buy an apartment?
The validity period of the document is not legally approved. The consent of the spouse (s) to purchase an apartment is made in the presence of a notary on a special form. The approximate cost is 1,000 rubles.
To issue consent, you need:
- The passport;
- Marriage certificate.
What can be the consequences if there is no spouse's consent to buy an apartment?
Let's summarize.
- It is possible to purchase housing without the consent of your spouse. It will automatically become mutual property if there is no document (for example, a marriage contract) governing the ownership of property acquired in marriage.
- You will receive documents for the purchased real estate in Rosreestr to register a new owner and issue a certificate confirming this. But state registration will be refused on the basis of Article 30 (clause 1) of Federal Law No. 122.
- The consent document will be a guarantee of peace of mind for a couple planning to buy a property.
In this case, both government officials, lawyers and employees of real estate companies are unanimous: the presence of all official, notarized documents will help to minimize attempts to fraud or withhold information.
There may be no agreement. Sometimes this is due to the ignorance or absent-mindedness of the person who issued the documents. Unfortunately, there are other motives as well. A husband, for example, deliberately hides from his wife the fact of acquiring real estate in order to freely sell it if necessary. The spouse has every right, upon learning of this, to go to court, annul the transaction and claim his part of the property.
Important! A transaction drawn up without the consent of the spouse (s) is in practice considered valid until the second half becomes aware of it and a trial is started.
At the same time, the notary, according to the law, does not bear any responsibility, since he is not obliged to check the information written in the application. His duties include only personal identification and signature verification.
If you still have questions about “ Is the spouse's consent required to purchase real estate», Ask them in the comments.
By law, an apartment acquired in marriage is considered joint property, even if it is registered for one person. When buying (selling) housing, of course, the consent of one and the spouses is required and this is a prerequisite. The proceeds from the sale are also shared and at the disposal of both.
Nevertheless, there are exceptions (contradictions) in the law. In what cases it is possible to sell an apartment without consent, how to draw up a contract correctly or how to challenge it, if necessary, will be considered in more detail in this article.
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Family code
According to Article 35 of the Family Code, when making a deal when buying a home, one of the spouses does not need a notarial permission from the other. His consent is assumed by default. But in clause 3 of the same article, the registration of any real estate transaction is impossible without the written, officially confirmed consent of the spouse. In court, he has the right to challenge the fact of the transaction. It turns out that there is a contradiction between the two formulations in one article of the Family Code.
In fact, the very fact of buying an apartment is not an obligation. Today, real estate transactions are considered justified immediately after the signing of the contract, and registration is already a subsequent formality.
As for the disposal of property, the housing being purchased is not yet the property of the spouses, which means that they do not have the right to manage in someone else's territory. The apartment will be considered property only after passing the registration procedure and nothing else.
At the stage of planning a home purchase, the buyer has only cash at his disposal, not an apartment, and in reality, even at the time of registration, when buying, the consent from the spouse, certified by a notary, is not necessary.
On the other hand, the money is considered to be common, and if the spouse does not agree to the transaction, he has the right to declare it invalid through the court due to ignoring the opinion of the second spouse.
It turns out that there is a contradiction in the interpretation of one article of the law.
In order to avoid misunderstandings and facts for challenging the transaction in the future, of course, it is advisable to confirm the consent officially by visiting the spouses of the notary to confirm the consent of one of them, having paid 100 rubles for the service, although this is an optional condition.
Sample document
The spouse's consent to purchase an apartment is a mandatory document that is required when registering the purchase and sale of real estate, if the buyer of the apartment is one of the couple. The need for it is due to the fact that the property acquired during the period of a registered marriage is jointly acquired.
The funds of the husband and wife, planned for the purchase of an apartment, are also considered common, which means that if they are spent on the acquisition of a particular property, the spouses must manage them jointly. That is why the consent of the spouse to buy an apartment is necessary for the successful and legal execution of the purchase and sale agreement.
When is spouse's consent not required?
Under a number of certain conditions, it is not required when buying an apartment:
- Marriage contract with the designation of all the conditions for the disposal of property between spouses in marriage, namely, the deprivation of rights to an apartment for one of them in the event of acquisition.
- Housing received as a gift or by inheritanceis not considered co-pressed.
- If there is a power of attorney for the transaction, then if it is impossible for one of the spouses to be present during the transaction, the power of attorney will serve as a legal basis for representing the interests of the husband from the wife, or vice versa. It turns out that, for example, a wife, on the basis of a power of attorney, has the right to sign any documents in the interests of her husband without his personal presence, as well as the fact that any other third party can act as a buyer who will be entrusted with the entire process of conducting a transaction (a realtor, when takes over the entire procedure on behalf of the buyer for the purchase (sale) of housing).
- In case of divorce and the presence of evidence on hand the process for the division of property is considered completed. Buying an apartment is possible without the consent of the other half. Only money can be considered common in a divorce, but not a division of property. In this case, to confirm the fact of spending funds when buying an apartment, the consent of the other half must be officially certified by a notary.
Requirements for registration and form of the document
If you agree, it means that the spouse approves the transaction, thereby reflecting the will of his spouse, who will directly conduct such a transaction. To obtain consent, you need to contact a notary, provide passports, marriage certificate and certify your consent by filling out the special form. sample or drawn up by the notary himself.
Permits for the purchase of an apartment are:
- applicants' passports or identity card;
- marriage certificate;
- title documents for the apartment indicating the address of the apartment, presumably for purchase;
The spouse who gave his wife permission to sell must familiarize himself with the sample application, while the notary, in turn, must explain all the nuances that may arise in marriage in case of the need to divide the property in the future.
Consent is an official document. There must be degrees of protection, a stamp as confirmation of the transaction by a legal representative-notary. The term of the agreement is specified in the text of the application. It is better to draw up it right before the purchase and sale procedure.
Registration of consent
Consent, certified by a notary, is an official document, without which the subsequent registration of the purchased apartment in Rosreestr, also in the registration chamber, is impossible. Registration will be made for 1 person and in order to avoid nuances between spouses in the future, this fact should be taken into account even at the stage of planning a home purchase.
It is important that the execution of the document of consent is drawn up legally competently, supported by signatures, official seal. Otherwise, the document may subsequently turn out to be legally ineffective.
All details in the document must be clearly spelled out (Full name, date of birth, passport series, by whom and when issued, citizenship, address of residence, all conditions for the purchase of housing with the prescription of accurate data), as well as prices, choice of apartment, conditions in case of a power of attorney.
Additionally, you can display the apartment number, number of storeys, cost (write in words).
The validity period of the consent (as well as the power of attorney) is presumably 1 year, but not more than 3 years from the date of issue.
When both husband and wife act as buyers, the apartment will belong to them in equal shares, ½ part to each. When purchasing an apartment in equal shares, the consent of the husband (wife) in the form of an application is not required, since both the husband and wife are present at the time of the transaction.
When one of the spouses acts as the buyer, and the second gives his permission to purchase, 1 owner (the so-called title owner) will be indicated in the title deed for housing. However, this does not mean that he is the sole owner of the purchased property.
In this case, the acquired property will be common, and the husband and wife will have a share in the ownership of the housing, which is ½ part, as provided by law. This means that despite the fact that the contract of purchase and sale of an apartment was drawn up, for example, for the husband, the wife can rightfully claim half of the housing.
Procedure and collection of documents
It is drawn up on a special form with the obligatory content:
- FULL NAME. applicant;
- passport data;
- marriage certificate;
- signatures of consent to buy and sell an apartment;
- stamp with registration number designation.
In addition to consent, it is possible to draw up a power of attorney for one of the spouses. Signatures affixed in documents are considered the basis for empowering the other half in the case of legal sale and purchase transactions.
The legislation does not provide for a clear execution of documents. It is enough to correctly and without errors indicate all the details, indicate a list of actions that the representative will subsequently be endowed with.
Indicate the period during which the documents will be valid (usually 12 months), as well as the possibility of transferring, for example, in the case of obtaining a certified power of attorney when giving one of the spouses the rights indicated in the power of attorney, in this case to buy an apartment.
Cost and terms
It is possible to issue consent to purchase housing, as well as a power of attorney for one of the spouses for the right to act on his behalf, for a period for 1 year... If you draw up an application yourself, it is enough to certify it with a notary. The cost of the service will cost only 500-600 rubles.
Reasons for lack of consent
Most transactions are made only on the basis of an oral decision of one of the spouses. Although this is an erroneous state of affairs and consent from the notary to the transaction is still necessary.
His second spouse may not give in the case of:
- Lack of information, necessary for the paperwork or transaction.
- Incorrect paperwork, in the case of buying a home without the help of a competent person, a realtor or a lawyer.
- Principal positions on the part of the buyer in case of disagreement, for example, with the requirements of the law.
- Deliberately hiding information from a spouse, when the buyer retains the right to purchase housing in secret from one of the spouses, which means that the subsequent sale is possible without his participation.
Perhaps, when registering an apartment, there is no stamp in the passport on the registration of marriage and the fact of the existence of a marriage relationship for the registrars is simply unknown.
How to dispute a sales contract?
The reason for the termination of the contestation of the purchase and sale agreement may be the fact that the notarized consent of 1 spouse to purchase a home has not been drawn up earlier. The spouse has the right to challenge a transaction made without his knowledge. This takes 1 year from the moment they receive information about this fact.
The victim must provide irrefutable evidence in court that the transaction was carried out illegally and consent to the purchase was not given. Only under such conditions can the sale and purchase transaction be invalidated.
To go to court, the victim must write a statement of claim, to provide evidence that his actions are legal and justified, the general family money was spent on the purchase of housing without his knowledge.
When buying and selling an apartment, many different legal nuances often arise. The procedures for such transactions are in reality complex and often contradictory. In order to avoid sharp corners, spouses are still recommended to notarize all their actions related to the property, even if it was acquired long before marriage.
Today, many couples disagree and the consequences may not be in their favor. A timely drawn up document will remain so, will serve as a guarantor for the safety of rights for one of the spouses in the future, in the event of divorce and the subsequent division of property.
If one of the spouses buys an apartment, then it is worth knowing about some rules:
- Execute all transactions with real estate need notary.
- The fact of buying a home can be disputed, if one of the spouses decided to purchase out of selfish motives or simply is not aware of the standards prescribed by the law.
- To challenge the transaction given 1 year.
Since 2017, the registration of transactions for the purchase of apartments has been carried out in the absence of a mandatory document - the notarized consent of the spouse to purchase real estate. However, the need to obtain written approval has been established by law to date.
The property acquired in marriage, except for the property received by way of inheritance or donation, is considered joint. The spouses should dispose of it on equal terms, even if only one of the specified family members is registered as the owner of the object. In order to avoid the recognition of the transaction as illegal, a mandatory procedure is to obtain a notarized consent of the second spouse to purchase an apartment or sell it.
The norm prescribing the mandatory passage of the procedure for obtaining the appropriate approval is set out in the following documents:
Also, the notarial consent of the spouse to purchase real estate (apartment or house) for a mortgage will be required by the bank, referring to Art. 7 Federal Law "On Mortgage". Exception: the second family member is a co-borrower under a mortgage lending agreement.
Developers selling apartments under equity participation agreements, when submitting documentation to Rosreestr, are also asked to provide the specified paper, even in situations of assignment of housing rights under construction (this is the position of the registering authority).
Registration procedure
The document is drawn up only by a notary. There is an option to independently prepare the text and arrange it on the notary's letterhead, but there is no reason to do this. In notary offices, such papers are prepared in half an hour.
Visit to the notary and documents
To visit a notary office, it is better to sign up for a specific time so as not to sit in line for an appointment. Only the spouse who is required to obtain approval can come to the notary. You must have with you:
- The passport.
- Marriage certificate.
The document should contain the following information.
Table 1. Information specified in the notarial consent of the spouse
Mandatory | Optional |
Passport data of the person on whose behalf the paper is drawn up | Pointing to a specific property with an exact address. If there is no bank requirement (when applying for a mortgage), then documentary approval can be issued for the purchase of abstract real estate. Also, the terms of the sale and purchase agreement and the price can be determined by the buyer independently, the document makes an entry "for the price and on the terms at his own discretion" |
Details of the marriage certificate | |
Name of the person to be approved | |
Link to the absence of a marriage contract | |
Indication of the real estate being sold or acquired | |
Notary data | |
Signature and transcript by hand | |
The cost of registration charged from the visitor (it is separately indicated how much the technical work costs and the tariff for the service) |
Sample document
The notary has established a certain form. How a completed notarial form looks like can be seen in the presented example:
Download the template for filling, which must subsequently be certified.
The cost
The fees for registration are set by the notary chamber of the region. The difference in how much this service costs depends on the tariff for technical work. The approximate cost is about 2,000 rubles.
Important! The validity period of the consent is not legally established. It is considered that it is valid until the moment the consent is withdrawn by the spouse.
When consent is not needed
The property is solely owned by one of the spouses if it is inherited or as a gift, therefore, it is not required to obtain consent for its implementation.
It is not needed when transferring any property as a gift to one of the spouses.
In addition to those indicated, a number of circumstances are distinguished in transactions that exclude the procedure under consideration, but here everything is not so simple.
When concluding a marriage contract
The Family Code (Art. 40) provides for the conclusion of an agreement between married citizens with the ability to provide for the status and ownership of values \u200b\u200band real estate that have appeared during the marriage. Accordingly, provided that certain property is assigned to one family member, the other does not have to documentarily agree to its acquisition.
When purchasing commercial real estate
It is believed that if the acquired premises are classified as non-residential, commercial, then the notarial consent of the spouse is not required for the purchase of real estate. However, this position is not legally supported by anything. In the case when one of the married couple runs a business and acts as an entrepreneur - one option, but if premises with a commercial purpose are acquired by an individual for the funds of the joint budget - the situation is different. In fact, commercial real estate does not have any fundamental differences for the situation under consideration. The agreement looks similar. The procedure for registering rights is exactly the same.
In addition, apartments are also listed as a commercial market by law, but are bought by citizens for family living as an economical option.
Therefore, many experts are of the opinion that the purchase of any type of real estate for the family budget should be approved.
When allocating shares
When purchasing real estate, the parties have the right to immediately allocate their shares. In this case, consent is not required. The size of the share does not matter, the main thing is the direct participation of the second half in the transaction and confirmation of approval by a signature in the purchase and sale agreement.
When the spouse issues a power of attorney for the second spouse to purchase
The issuance of a power of attorney to represent the interests of a person assumes that the principal fully relies on the person indicated in the document.
The format of a power of attorney involves performing actions on behalf of your other half, but independently, therefore it replaces two documents at once.
When specified in the contract for the acquisition of joint ownership
Important! If the spouses are divorced, but the property is not divided, then consent is required. After the decision of the court on divorce and entry into force, the norms of the civil code apply to the former family members.
Consequences of lack of consent
If the seller has not verified the existence of an agreement reached between the buyers - a married couple - he risks subsequently, like a married / married citizen himself, who ignored the requirements of the law.
Refusal to register
Until 2017, Rosreestr demanded that a notarized consent form of the spouse be attached to the package of documentation submitted for registration, otherwise it refused to register. Today, things are different - in connection with the documentation, the transfer of rights from one owner to another is accepted, and even the transfer of rights from one owner to another is registered, but a note is made in the register about the possibility of interested parties to challenge the transaction.
It is not known whether the second half of the buyer will eventually challenge the unfair spending of the common money, but there is such a risk.
The likelihood of challenging the transaction
To protect the rights of a person whose opinion was not taken into account by his other half when disposing of their joint funds, the law provides for the right to challenge such a transaction. A deprived citizen can exercise his right within 1 year from the moment he receives information about the unfair behavior of his wife / husband.
What you need to know about a callable transaction:
- recognized as such only by a court decision;
- the applicant can be a person whose interests are affected (the marriage is registered, not dissolved, and in case of dissolution, there is no court decision on the division of property);
- in the event that the applicant can confirm the impossibility of applying within the one-year period specified by law for a valid reason, it is possible to extend the period for applying for judicial protection;
- a positive result of the consideration of the claim will be a return to the "initial position", that is, the buyer will be refunded the money, and the seller will receive back the sold apartment.
If registration takes place, the property will become common property
Buying an apartment secretly from your loved one is unlikely to succeed. But even if such an option is allowed, in the absence of a marriage contract, the acquired residential premises will be considered common property. Family members should dispose of it on an equal footing. In the event of a divorce, the property is divided equally. If the object is indivisible, one spouse buys out half of it from the other, unless otherwise agreed.
The change in legislation resulted in the absence of the requirement of the registering authority to issue a written approval of the actions of the person with whom the marriage was concluded. But there remained an unrecoverable contradiction with the Family Code, and in addition, there was a real possibility of setting a mark in the Register of real estate as contested.
Given these circumstances, it is better to prepare in advance the approval of the spouse or, being on the side of the seller, insist on receiving a certified form by the buyer and not wait for any dirty trick from the other side.
Additional details on the video:
Higher education. Orenburg State University (specialization: economics and management at heavy engineering enterprises).
January 24, 2018.