Registering rights derived from acts between a married person and a third party

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1. When a married person becomes the owner of a registered property, which special requirements derived from his/her civil status must be taken into consideration in order to get the new title registered in the Land Registry?

The notary has to make sure the marital status and what matrimonial regime the spouses have. If there is no information about civil status the registrar demands the information about the civil status and matrimonial regime and demands the consent of the person concerned.

The notarially authenticated act must contain information about civil status of the person, name of the spouse, matrimonial property regime the spouses have chosen. If one of the spouses is foreign also information about the applicable law.

It is enough to declare the information. In case of doubt the registrar can check the information from Population Register or Matrimonial Property register. The notary declares the matrimonial property regime in the act for making the Land Registry entry.

In case of foreign spous(es) or law the requirements are the same. The spouses have to go to Estonian notary who authenticates the act and delivers it to the Land Registry.

2. How the registration in favor of a married person would be done? Would any interested party be able to know by checking the land registry information any restriction in the powers of the owner derived from the matrimonial property regime?

It depends of the matrimonial property regime. If spouses have community regime they both are entered as a joint owners with no shares. If spouses have separation assets they will be entered as common owners with shares. Or if one spouse will be owner and they have separation of assets he/she will be entered as sole owner.

No information related to matrimonial situation is entered in the Land Registry.

Third parties can check the marital property register as well. A transaction with joint immovable property conducted without the consent of the other spouse is null and void.

3. What will the Land Registry demand from a married proprietor to register the transmission or any modification of his/her registered title?

The information of the matrimonial property regime is obligatory to present in the notarial act. If there is no information the registrar can check it from the Population Register and Marital Property Register. Registrar may also request the notary or spouses to specify the act or send additional documents.

When concluding the marriage, the spouses are obliged to choose their matrimonial property regime. They can choose between the community of property regime, the community of accrued gains regime or the separation of property regime.

If the spouses have not chosen the matrimonial property regime when entering into marriage or by concluding a marital property contract, it is presumed that the statutory regime of community of property is applicable. According to this regime, the property acquired during the marriage is considered the joint property of the spouses.

Under the community of property regime, the spouses exercise the rights and obligations related to their joint property jointly or with the consent of the other spouse. For transactions concerning movable property or a right belonging to the joint property of the spouses, the consent of the other spouse is presumed (consent is not presumed for transactions with immovable property).
A transaction with joint immovable property conducted without the consent of the other spouse is null and void.

Under the community of accrued gains regime, property belonging to a spouse is his/her separate property, of which only the owning spouse can dispose independently (without the consent of the other spouse) regardless of whether the property was acquired before or during the marriage. However, for entering into transactions concerning the dwelling used for the housing of the family or used by the non-owning spouse, the consent of the latter is required. If such a transaction is concluded without the consent of the non-owning spouse, it is void and the other spouse has the right to file a claim arising from invalidity of the disposal against the third party.

Under the separation of property regime, with regards to their property relations, the spouses are treated as if they were not married and each spouse administers and disposes of his/her property independently at his/her own expense.

A spouse may dispose of or undertake to dispose of a dwelling which is the spouse’s separate property and is used as a housing of the family or used separately by the spouse who is not the owner and grant the use thereof to a third party or terminate the legal relationship on which the use thereof is based only with the consent of the other spouse.

Under Estonian law cohabitation cannot be registered and there is also no other special regulation foreseen for nonmarital cohabitation.

Practical case 1

Janos, who is married to Elena under a matrimonial economic regime of community of joint assets, buys an immovable property. He signs the deed of transfer before a local notary, acting solely and on his own, without any intervention of his wife Maria. The deed of transfer is sent to the registry for registration.

Will Janos be registered as sole proprietor? Will the entry make any reference to the name of his spouse? Or his matrimonial property regime?

In case of community joint assets regime both spouses are registered as joint owners. The notary has to make sure the marital status and what matrimonial regime the spouses have. A transaction with joint immovable property conducted without the consent of the other spouse is null and void.

In case the deed says nothing about it, does the registry demand information about the civil status (married/ single (widow) of Janos? The identification of the spouse? Their matrimonial property regime?

If there is no information about civil status the registrar demands the information about the civil status and matrimonial regime and demands the consent of the person concerned.

Would any proof of the concrete matrimonial property regime would be required? What if Janos and Elena’s matrimonial economic regime is under a foreign law?

Yes, the registrar will check the matrimonial property register. If there is no information in the matrimonial property register it is presumed that the spouses have the regime of community of joint assets. The registrar will ask the consent of the person concerned or proof of the foreign regime.

Would that information appear somehow in Janos’ right registration?

The spouses are entered to the Land Register as joint owners.

If the answer is affirmative, will that information be taken into account if Janos performs a disposition act of the registered property to a third party in the future?

The registrar will ask the consent of the person concerned.

Would any of your answers to these questions be different if dealing with a registered partnership, rather than a matrimonial property regime?

Under Estonian law cohabitation cannot be registered and there is also no other special regulation foreseen for nonmarital cohabitation.

Practical case 2

Pierre is married to Michelle and although the matrimonial property regime established by the applicable law is a joint community one, the same law allows the spouses to modify that legal regime adopting a different one which is the property separation of assets regime, for which purpose they both sign a matrimonial property agreement modifying their matrimonial community property regime into a separation of assets one.

When Michelle buys the right of usufruct on an immovable asset, she appears on her own in the contract of sale and the transfer deed and she wants that the registration to be made in such a manner that no restriction or limitation derived from her marriage appear in the registry.

Will the registry make the registration according to her wishes without any proof of the matrimonial property agreement?

The notary has to make sure the marital status and what matrimonial regime the spouses have. If there is no information about civil status the registrar demands the information about the civil status and matrimonial regime and demands the consent of the person concerned.

Would it be sufficient to present the document containing that agreement?

Yes

Should that agreement be registered first as a prerequisite for the registration in the Land Registry?

The agreement of matrimonial property should be registered in the matrimonial property register. If it is not registered there the parties can deliver it to the Land Registry for the proval of the matrimonial property regime.

Would any of your answers to these questions be different if dealing with a registered partnership, rather than a matrimonial property regime?

Under Estonian law cohabitation cannot be registered and there is also no other special regulation foreseen for nonmarital cohabitation.