In the article, we consider the validity of the spouse's consent to the sale of real estate.
Making transactions with real estate involves certain risks. The cost of such facilities is very high. In addition, registration of legal relations from a legal point of view is a rather complicated process. For example, if the premises are an object of joint property of the spouses, before selling the property, one of them will have to obtain permission for the operation from the other. Otherwise, the transaction may be considered illegal.
Resellers
It is worth noting that consent to the sale of real estate resales is also required. This is due to the features of the apartment - primary housing cannot be joint property, as it is sold by the developer or construction company, it is a new building. In any other cases, the property is secondary.
It is important to consider that the consent of the spouse given for the sale of immovable objects has a certain period of validity. In cases where it is not possible to complete the transaction in the allotted time, re-registration of documents will be required.
The validity of the spouse's consent to the sale of real estate will be described below.
Situations where spouse consent is required
Property acquired by spouses during their legal marriage is recognized as jointly acquired. This, in turn, includes apartments and other residential property. Transactions with such property should be carried out in concert, even in cases where the documents indicate the name of one of the spouses.
It is worth paying attention when a transaction is made to alienate property, the owner must provide consent obtained from the husband or wife if their marriage is officially registered.
A sample consent of the spouse for the sale of real estate is presented below.
Jointly acquired
To understand whether an object belongs to jointly acquired property or not, one should take into account the mechanism of initial acquisition of rights to it. That is, some properties may be excluded from the list of joint property.
Such situations are possible if the object was received by one of the spouses as follows:
- Free from public housing funds.
- For a present.
- By inheritance.
The first situation is called privatization. The property included in the above list, as well as those objects that the spouses had before the registration of the official marriage, are the property of sole ownership.
A person can dispose of such objects without taking into account the opinions of the spouse. However, in practice, situations arise when an apartment received by one of the spouses under a gratuitous contract is recognized as joint property. This happens if he spent his own money on the modernization of an immovable object, thereby significantly increasing its value.
To recognize the property jointly, the second spouse will have to contact the judiciary.
Reverse procedure
In accordance with applicable law, the reverse procedure is allowed. For example, if one of the spouses acquires an immovable object at their own expense, it can be considered an individual property on the basis of relevant regulatory legal acts.Own is the money that a person receives as a gift or by selling personal property.
It is also worth noting that consent from the spouse for the sale of real estate of the secondary property, a joint property, will be required even in the event of the dissolution of the official marriage.
Three years after a divorce
The specified obligation shall remain for three years from the date of the official divorce, if it is absent:
- Settlement agreement, previously agreed with representatives of the bailiff service.
- Judgment of the rules for the distribution of property.
- Agreement on the division of spousal property, certified by a notary.
Otherwise, you will have to obtain the consent of the former spouse for the sale of real estate.
To understand how much spouse's consent is valid, you should study the regulatory framework. General rules for the coordination of such transactions are regulated by article 157.1 of the Civil Code of the Russian Federation.
The legislative framework
Legislation requires that consent be in the form of an established document. Please note that the silence of the spouse is not considered approval of the transaction. The above normative act also contains a list of conditions on the types of alienation and objects.
The process of approval of the transaction itself, if it is marital property, is regulated by article 35 of the Family Code of the Russian Federation.
Provisions
The following provisions are reflected in the law:
- The spouse's notarial consent to the sale of real estate must be properly executed.
- Transactions made without such consent may be disputed on the basis of a lawsuit by a spouse whose opinion was not asked.
- Spouses have the right to dispose and use the property only in agreement with each other.
The processes associated with the preparation of documentation and the implementation of state accounting for transactions with real estate that are spousal property are regulated by the legislative framework, namely 122-FZ. Thus, the registration authorities have the right to reject applications for registration of the transfer of ownership of real estate owned jointly by the spouses, if one of them, the seller, has not provided the duly executed consent. The legislation provides for the possibility of independent change by husband or wife of the regime of joint property. For this, a prenuptial agreement should be concluded, which will reflect the rules regarding ownership, disposal of a residential property.
Consent to sale or general power of attorney for real estate with the right to sell
In accordance with applicable law, there are no exceptions to the principles for the coordination of transactions for alienation of joint property. This leads to situations in which there is excessive regulation by the state.
Some authorities may refuse to register transactions with residential properties if they are carried out in accordance with a general power of attorney with the right to sell, but in the absence of consent from the spouse.
There is no uniform practice on this issue. In order to avoid difficulties, the ideal option would be to provide both documents: power of attorney and consent. It’s important to understand that you won’t be able to withdraw permission. It can only be appealed to the judiciary, proving that the spouse, who received consent, has abused the right transferred to him.
The procedure for processing the transaction with consent
For the sale of an immovable property, it is necessary to draw up a spouse’s permission to make a deal. Particular attention must be paid to the form of the document. It must be prepared by a notary public. For paperwork, both husband and wife will have to personally visit a notary public.
The notary agrees to sign the consent only if certain papers are provided to him, namely:
- Evidence of marriage.
- Title documents for an immovable object.
- Passport of each spouse.
There are no special requirements for the document. But spouses should be required to provide information about the object, the implementation of which is expected, and the transaction itself. That is, the spouse may indicate that he gives permission to sell the immovable object only if its value exceeds the minimum recorded in the document.
Duration of spouse's consent to the sale of real estate
The current legislation does not establish a period during which the permission of a husband or wife to sell a property certified by a notary is considered valid. But one of the spouses who gave such consent has the right to indicate in it the period of its validity. That is, if the sale of an immovable object does not occur within the prescribed period, the document will be declared invalid. This means that the sale of housing in the future will require a second consent.
Conclusion
Thus, an important document in the execution of transactions with immovable objects executed by people who are married or have recently divorced is the notarial consent of the spouse to sell real estate. In the absence of such a document, difficulties may arise in registering a transaction.
We reviewed the validity of the spouse's consent to the sale of real estate.