Do you need your spouse’s consent to buy an apartment or can you complete the deal without it?

When making transactions with real estate, citizens must comply with many nuances and formalities. In particular, when disposing of common property or funds of spouses, it is necessary to comply with the legal regime of joint ownership. In the material presented, you can find out whether your spouse’s consent is needed to purchase an apartment and what is necessary to obtain consent to sell real estate.

How to obtain your spouse's consent to sell real estate

The consent of the spouses to the purchase or sale of real estate (apartment, house, dacha) and other real estate is directly related to the legal status of common joint property.

As a general rule, in the event of the acquisition of any real estate between spouses, a legal regime of joint ownership arises, which is characterized by the following features:

• alienation of property without the consent of all owners is impossible, therefore both partners must act on the side of the seller, or a power of attorney can be issued for one of them;
• the legal regime of joint property, enshrined in the purchase and sale agreement, can be changed by a marriage contract or an agreement on the distribution of shares;
• even if real estate is registered in the name of one of the spouses, it will be recognized as joint property (provided that the acquisition was carried out through a compensated transaction at the expense of common family funds).

How to obtain a spouse’s consent for the sale of real estate in 2017, and is this requirement necessary to comply with if the transaction is carried out in the presence of the second spouse? 

The spouse's consent to the sale of real estate in 2017 is required in all cases, with the exception of the disposal of housing owned by personal property (for example, acquired before marriage).

The spouse's consent to the sale of real estate must be in writing. In addition, the legislation establishes a requirement that consent be drawn up by a notary.  

Violation of this rule may lead to the invalidity of the transaction at the request of the interested party, after which the sold property must be returned or compensation must be paid for violating the rights of the second spouse.

Is it possible to conduct a transaction without consent?

Formally, completing a transaction without the consent of the second spouse is permitted by law, since the consent of the spouse, drawn up by a notary, is not included in the mandatory list of documents for making transactions.

However, in practice this is almost impossible to do for the following reasons:

• the recipient of the property under the transaction, in the absence of the consent of the second spouse, is unlikely to agree to part with the funds, since the presence of this document is the most important rule when checking the legal cleanliness of the apartment;
• the lack of consent of the second spouse may be detected during registration actions in the Rosreestr service, after which a refusal to register the transaction will follow;
• the second spouse has the right to challenge a sale or gift made without his consent.

Is it possible to make a transaction without consent if the second spouse is personally present during the execution of documents? The presence of the spouse giving verbal consent when signing the contract does not eliminate the obligation to have the written consent certified by a notary.

Even if the spouse is not able to come to the notary in person (for example, for medical reasons), he needs to agree on the provision of on-site notary services at home.

What property is considered common?

Is the consent of a spouse required when purchasing an apartment in 2017, if the personal funds of one of the partners are used to complete the transaction? In this case, it is not necessary to obtain the consent of the second spouse; however, with a possible division of property assets, you will have to prove the origin of the funds (for example, a personal loan from relatives subject to repayment of the debt without using family funds).

Property assets acquired during marriage are recognized as common property, with the exception of the following cases:

• real estate was acquired through a gratuitous transaction by only one of the partners (for example, inheritance or privatization);
• an agreement between the parties or a marriage contract establishes the regime of personal ownership of one of the partners in the property;
• if during the period of family relations the second spouse avoided receiving income without good reason or spent common funds contrary to the needs of the family.

All these circumstances must be proven if a dispute arises about the division of joint assets, which in practice can present a certain difficulty. As a rule, such disputes are considered by the court during a divorce.

The copyright holder has the right to sell property assets owned by personal property without obtaining consent. Such transactions will be considered legal, and challenging them will have no prospects in the courts.

Sample

Since it is impossible to draw up documents without a notary, the spouses will have to visit a notary’s office. A sample of this document can be downloaded on our website, this will allow you to determine the contents of the form in advance.

Download a sample spouse consent form for the sale of real estate in (.doc) MS Word format

The consent is drawn up personally by the spouse who agrees to the sale of the common property. The appearance of the second partner at the notary's office is optional. The completed document will need to be submitted to the registration authority, as well as to the person who plans to buy the property.

Spouse's consent to sell real estate

It is also necessary to take into account additional nuances of obtaining consent to dispose of residential premises. In particular, if the former spouses remain co-owners of the property, it is also impossible to sell the property without obtaining consent.

A sale with the execution of purchase and sale documents does not require the participation of both spouses, since the second partner must agree to the conditions set out in the draft agreement (in particular, the price, payment procedure, etc.).

If the sales price is included in the text of the consent, it will be impossible to conclude an agreement on other terms. As a rule, if the parties indicate prices in agreement, then this condition determines the minimum value of the sale price.

It is also impossible to sell real estate without the consent of the spouse, even if you present a power of attorney executed by a notary. This is due to the different legal meaning of these documents, since a power of attorney only provides the authority to perform legally significant actions.

If the disposal of real estate was carried out without formal consent, the transaction can be challenged within the three-year limitation period. After missing the deadline for filing a claim, it will be almost impossible to challenge the transaction, so it is necessary to pay special attention to the timeliness of filing claims.

Documents for registration

Let's consider what documents citizens need to formalize consent to dispose of real estate by the second spouse. To obtain consent, the applicant must submit the following documents to the notary office:

• an identity document, as well as personal data and passport details of the second partner;
• documents confirming the legal regime of joint ownership of real estate.

If a partner gives consent to his wife to dispose of joint real estate, he must be aware of the consequences of such a decision. When preparing documents, the notary will check this fact, as well as whether the applicant has legal capacity to issue consent.

Validity

When applying for the issuance of a notarial document, the parties have the opportunity to determine the validity period of the consent. Registration of consent for a certain period will entail the illegality of any transactions made after the expiration of the date specified in the document.

As a rule, consent is certified for an unlimited period, since the duration of transactions may be delayed for objective and subjective reasons. In this case, you need to remember that the law does not provide for revocation of consent, unlike a power of attorney. If the spouse has changed his mind and objects to the disposal of the housing, he needs to fill out an application to the Rosreestr service.

How much

For registration of a document by a notary, you must pay a notary fee, as well as costs for technical services for filling out the consent form.

The cost of notary services may vary depending on the specific subject of the Russian Federation; on average across the country, obtaining a consent will cost 1,500-2,000 rubles. Citizens pay this amount directly at the notary's office when applying for the issuance of a document.

Legislation

The grounds and procedure for disposing of joint property assets of partners, including the requirements for obtaining consent for the sale and purchase of housing, are regulated by the norms of the Civil Code of the Russian Federation. Family Code of the Russian Federation, as well as Federal Law No. 218-FZ. Challenging transactions made without receiving the specified form takes place according to the rules provided for by civil law.