Spouse's consent to purchase real estate

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Real estate transactions for married people have their own characteristics. Depending on the circumstances, the consent of the spouse may be required to purchase an apartment, and in some cases, its absence will be grounds for cancellation of the transaction. In any case, the document ensures protection of the transaction itself and the acquired real estate from challenge and associated unpleasant consequences.

The legislative framework

In transactions involving the purchase of an apartment by one of a married couple, actions are regulated by the following provisions of the Family Code (No. 391-FZ dated December 29, 2015):

• clause 2 art. 35 of the RF IC - assumes that all actions in relation to common property (in this case, spending money on purchasing housing) are carried out by mutual agreement, each acts with the approval of the other. But this does not cancel the right of the second spouse to disagree with the acquisition, and if there is evidence of his ignorance, to appeal to the court.
• clause 3 art. 35 of the RF IC - declares the need to obtain the notarized consent of the wife (husband) when concluding transactions with property that require state registration of rights (in this case, the purchase of an apartment), as well as those subject to mandatory state registration or certification by a notary. In the absence of such within 12 months from the date of notification of the transaction (actual or planned), you can demand that it be declared invalid.

Thus, paragraphs 2 and 3 of Article 35 of the RF IC contradict each other, which is why when a married couple purchases a home, controversial issues may arise, including termination of the sales contract.

When is consent not needed?

Is it necessary to have a spouse’s consent to purchase real estate, and in what cases can you do without it?

All manipulations can be carried out by one of the couple without the consent of the other, if the property is not considered jointly acquired. For example, if it was inherited or received through a deed of gift.

Also, consent does not make sense if there is a process of transferring real estate from one of the spouses to the other as a gift or when re-registering rights to property. In addition to the obvious, there are also a number of controversial situations where the solution is not so clear-cut.

When concluding a marriage contract

According to Article 40 of the Family Code, it is possible for a getting married couple to enter into an agreement that regulates the ownership of property and management of the family budget. Therefore, if these functions are performed by one person, then his partner will not have to agree to manipulate the family’s funds. If property issues are not specified in the marriage contract, consent is formalized as in the standard case.

Do you need your spouse's consent to buy an apartment in 2020?

The legal provisions regarding the need to obtain written permission from a spouse when purchasing a home are ambiguous:

• On the one hand, the Family Code allows married citizens to do without written consent when dealing with property disposal.
• On the other hand, the absence of a document leaves the opportunity for the second spouse to challenge the agreement if he considers his rights to have been violated or proves that his opinion was ignored in terms of purchasing real estate.

If you have doubts about why you should apply for permission to purchase housing from your wife (husband), you should understand that in this way you can eliminate the risk of the transaction being declared invalid. Even if in words the other half is aware of the planned sale and purchase transaction and approves of it, for various reasons the opinion on this matter may change. The document will allow you to insure yourself if the matter comes to trial. A permit should be especially issued in cases where:

• at the preliminary discussion of the possible purchase, the husband (wife) was categorically against it;
• the amount from the total budget that the other party planned to spend on other needs is used to purchase housing;
• real estate is purchased using income received during marriage, but hidden from joint disposal with the second spouse for their own needs.

In addition, its availability is often asked by realtors who are entrusted with the selection of an apartment: according to the contract, they are responsible for the result of the transaction, so it seems quite reasonable to strive to minimize all possible risks.

Consequences of missing a document

Due to ambiguous interpretations of the legislation, some territorial branches of Rosreestr require the notarial consent of the husband (wife) when submitting an application to register the transfer of ownership rights under a purchase and sale agreement, and in the absence of it, they refuse registration actions. In other constituent entities of the Russian Federation, Rosreestr employees accept documents and carry out registration, but make a note about the possibility of challenging the contract by the second spouse. It may be invalidated in situations where:

• the initiator of the transaction (husband or wife) knew that the other half was against it, but despite this, he carried it out;
• the second party was not aware of the planned purchase of residential real estate;
• no more than 12 months have passed from the moment the spouse learned about the real estate purchase and sale transaction.

The transaction can be challenged in the district court at the place of registration of the plaintiff or defendant. The main task of the plaintiff will be to prove that its initiator knew about the refusal of the other half to buy housing. If the claim is satisfied, the purchase and sale agreement is terminated, the property is returned to the seller, and the money paid under the agreement is returned to the buyer.

Example. A wife can file a lawsuit if her husband bought an apartment without her permission, spending common funds. If there is evidence of ignorance about the acquisition, the court will issue a ruling declaring the acquisition invalid.

When can you do without permission?

In some cases, a husband or wife has the right to buy a home without the approval of the other half. This right arises when one of the spouses:

1. Becomes the owner of the apartment on the basis of a deed of gift or certificate of inheritance. The property will belong to him alone and will not be subject to division in the event of a divorce.

Expert opinion

Semyon Frolov

Lawyer. 7 years of experience. Specialization: family, inheritance, housing law.

If housing is purchased using personal funds received through donation or inheritance, permission may be required. Despite the fact that money will also be considered personal property, it is not always possible to prove in practice exactly what funds (personal or general) are spent.

1. I previously issued a notarized power of attorney regarding the right of the husband (wife) to purchase and sell property without obtaining prior written consent.
2. He entered into a marriage contract with the second spouse (before registering the marriage or after), which reflects the conditions for the disposal of existing real estate and those purchased in the future, even if they do not comply with the norms of the Family Code.
3. Concludes a transaction on the basis of a power of attorney in the interests of a third party. The latter will become the owner of the property after registration of ownership; therefore, the general interests of the family are not affected in this case.
4. Buys an apartment using maternity capital. But in this case, the husband and wife are required to draw up a notarized obligation to allocate shares to minor children.

In addition, there is no need to obtain written permission if a husband and wife appear together as the buyer in the purchase and sale agreement. Accordingly, both automatically agree to the purchase, sign the agreement, and the property is registered as ownership on an equal basis.

Purchase with a mortgage

Mortgage transactions deserve special attention. Real estate purchased using mortgage funds is pledged to the bank until the debt is fully repaid. In the absence of a marriage contract, it is considered joint property (without the allocation of shares), therefore, to complete the transaction, it is necessary to provide the banking institution with the written consent of all owners (Article 7 of Law No. 102-FZ “On Mortgage”), that is, husband and wife. Without it, the bank is unlikely to approve the registration of a mortgage, since the right of ownership, as well as debt obligations under such an agreement, arises simultaneously for both. The document itself is necessary as additional security for a banking institution.

An exception applies to cases where a husband and wife are involved together as co-borrowers under a mortgage agreement. The size of each person's shares does not matter.

How to obtain your spouse’s consent to purchase an apartment

The document can be drawn up at any notary office. To do this you need:

• must appear in person , otherwise the notary officer does not have the right to certify the permission. Registration by proxy in this case is not allowed.
• Bring documents : passport, marriage registration certificate, preliminary purchase and sale agreement (if available), receipt of payment of the fee (if the notary does not have an on-site payment point).

The legislation does not provide a single form for the spouse’s consent to purchase an apartment. You can draw it up yourself or get the appropriate form from a notary office. The following information is included in the application:

• Date and place of compilation (name of locality).
• Details of the applicant (wife or husband) giving permission: full name, date of birth, passport details (number, series, date of issue, name of the authority that issued the document), place of registration.
• Details of the spouse who conducts the transaction.
• Information from the marriage certificate (date of registration, registration number and issuing authority).
• Permission for certain actions (purchase of real estate).
• Indication of the presence/absence of a marriage contract.
• Information about familiarization with Art. 34-35 of the RF IC, rights and obligations of the parties.
• Signature of the applicant (placed in the presence of a notary).

Additionally, information about real estate can be entered:

• price : if it is necessary to set a limit on the cost of the apartment not exceeding a certain amount;
• address and some characteristics of a specific property (usually practiced in purchase and sale agreements under a mortgage or at the expense of maternity capital).

If there are no restrictions on the cost and location of the property, the spouse may agree to purchase an “abstract” apartment. In this case, the phrase “For a price and on conditions at your own discretion” is written.

At the end there are the details of the notary, his confirmation of the applicant’s legal capacity, personal signature, seal and registration number. The document is drawn up in one original copy; if necessary, the applicant can ask for duplicates. Depending on the method of acquiring real estate, it is further transferred to the registration authority or credit institution. Sellers usually do not require permission, since it is not included in the list of required documents for a purchase and sale transaction.

Sample power of attorney, consent for a spouse to purchase an apartment

Validity

There are no provisions in the legislation regarding the validity period of the permit. As a rule, it is one-time and limited to the date of the transaction for which it was issued. In the absence of such, the action is considered unlimited or until consent is withdrawn. The last procedure must also be carried out in notarial form (Part 1 of Article 452 of the Civil Code of the Russian Federation). In addition, the husband or wife has the right to independently set the time frame (1 month, 1 year, etc.) when registering with a notary.

Registration procedure

The document must be prepared only by a notary. There is an option to prepare the text yourself and arrange it on a notary’s letterhead, but there is no reason to do so. In notary offices, such papers are prepared in half an hour.

Visit to a notary and documents

To visit a notary's office, it is better to make an appointment for a specific time so as not to sit in line for an appointment. Only the spouse from whom approval is required can come to the notary. You must have with you:

1. Passport.
2. Marriage certificate.

Contents of consent

The document must contain the following information.

Table 1. Information indicated in the notarial consent of the spouse

Sample document

The notary has established a certain form. You can see what a completed notary form looks like in the example provided:

Fig.2. Sample form. Source website stdveri.ru

You can download a template to fill out, which must subsequently be certified, here.

Price

Tariffs for registration are set uniformly 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 2000 rubles.

Important! The validity period of consent is not established by law. It is considered to be valid until the consent is withdrawn by the spouse who gave it.

How much does it cost to obtain consent from a notary?

The cost of registration is formed from the following expense items:

• state fee for notarial acts – 500 rubles. (clause 6, part 1, article 333.24 of the Tax Code of the Russian Federation);
• additional services of a legal and technical nature (drawing up a document, making copies, consultation on the nuances of drawing up real estate contracts, etc.) - payment is set by the regional notary chamber, its amount can be viewed on the FNP website by selecting the corresponding subject of the Russian Federation and the name of the service.

Notaries do not have the right to impose additional legal and technical services. Citizens have the right to apply directly for a notarial act (certification).

The total amount will vary depending on the region. On average, payment for notary services in 2020 is 1500-2000 rubles. taking into account the preparation of the permit and its certification. If you want to save money, you can apply with a ready-made text just to have it certified. In this case, one should take into account the possibility that the notary may refuse to certify the brought copy if he discovers that the information is incorrect, incomplete, or the document is drawn up with errors.

Are you buying an apartment while married and want to minimize all possible risks?
One of the important documents for this purpose is consent to purchase a home from a spouse not participating in the transaction. At a free consultation, lawyers will help you figure out whether it is necessary to obtain a permit in your case. They can also provide full support for the purchase and sale transaction in order to control the correctness of the execution of documents so that they do not contradict the interests of the parties. Attention!

• Due to frequent changes in legislation, information sometimes becomes outdated faster than we can update it on the website.
• All cases are very individual and depend on many factors. Basic information does not guarantee a solution to your specific problems.

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Author of the article

Maxim Privalov

Lawyer. 2 years of experience. I specialize in civil disputes in the field of housing and family law.

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How to apply correctly?

If the consent of the spouse is still required, then it is important to formalize it correctly. The drafting process involves the participation of a notary and his certification of the document.

This allows the parties to be sure that the paper is valid and reflects the real position of the spouse of the transaction participant. The registration procedure does not take much time and does not require the submission of an impressive package of documents.

However, you should approach the issue responsibly in order to avoid mistakes.

Required documents

When contacting a notary to obtain the written consent of a husband or wife, a certain set of documents is required. In addition, the presence of both spouses is mandatory.

The set of required papers must include:

• passports of interested parties;
• Marriage certificate.

In the standard case, no additional documents are required. The main task of interested parties is to contact a notary and confirm the existence of a marriage.

Form of compilation and content

The document must be drawn up in writing.
However, there is no standard form or type confirmed and recorded by law. This means that theoretically the document can be drawn up in free form. Certain types of information must be provided:

• Full name of the person whose consent is required to be obtained;
• passport data;
• marriage certificate details;
• Full name of the spouse who carries out the transaction;
• date of registration and signature;
• notary certification.

The information listed in the document must be true and correct and reliable.