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?

There are not any special requirements that should be taken into consideration. That the new owner, for example a buyer of a real estate or a person who has inherited the real estate, is a married person, is not a legally relevant fact in the exchange and registration of real property in Finland. The Land Register in Finland doesn’t include any information, either, about owner’s

  • civil status
  • the marriage settlement
  • applicable foreign law

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?

The registration in favor of a married person does not differ from the other manners of registration at all. The facts  to be checked and the information concerning the new titleholder (owner) to be shown in the register are the same.  The Land Register in Finland doesn’t include, either, any information about owner’s

  • civil status
  • the marriage settlement
  • applicable foreign law

However, according to the Finnish Marriage Act the marriage may impose restrictions on the owner´s right to dispose of the property without a prior consent of the the other spouse. The consent of the other spouse is needed if the property is meant to be used as a common home for the spouses. This state of affairs cannot be seen by checking the land register, like the civil status of the registered owner cannot be seen by checking the register information, either. Someone who for example wants to buy the property has to check the civil status of the owner and the possible restrictions this may impose on his / her powers to dispose of the property otherwise during the conveyancing process. The civil status and also the address of the common home of the spouses can be checked in the Population Information System.

The Finnish matrimonial system represents a so called system of separate ownership between the spouses. So, the other spouse can own alone a real estate and the registration of the ownership can be alone in his or her names. This concerns also a property which is used as a common home of the spouses. This kind of a property, like other property, too, can be in the ownership of the other spouse alone.

It is, however, quite usual in Finland that spouses own jointly one or more real estates and at least the property which is used as a common home for spouses is in joint ownership. In Finland it’s not possible to register this joint ownership of the spouses in a way  “Spouses A and B owns the property together 1/1“. If the spouses own the property together their ownership is registered in shares in which they have aquired the property according to the transfer deed ( for example A ½ and B ½ or A 1/5 and B 4/5). If the shares  don´t appear in the transfer deed they are considered to be  as equal.  This means that the joint ownership represents in Finland, even between the spouses, the so called principle of divided joint ownership. If a law of a foreign state is applicable to the matrimonial property regimes of the spouses and if that law accepts or even presupposes undivided joint ownership between married couples, the question, whether the ownership can be registered showing this relationship between the spouses (the ownership undivided 1/1 together), is a bit unclear so far.

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

If the registration of the transmission or any modification is applied for by a spouse, person’s civil status shall be checked from the Population Information System, when spouses are registered in Finland. When they aren’t registered in Finnish system, parties should give the information about their civil status themselves, if it has effects to the disposition itself or to the registration.

According to Marriage Act (234/1929) 38§, a spouse shall not convey a real property intended for use as the common home of the spouses, unless the other spouse consents to the same in writing. However, the consent of the other spouse shall not be needed, if the property to be conveyed is mainly intended for some other use and if the home and the property on which it stands cannot be excluded from the conveyance without causing considerable reduction in the value of the real property.

And according to Marriage Act (234/1929) 133§, when property is situated in Finland, the same spouse’s consent mentioned in 38§ is mandatory to the transmission or modification of a common home of the spouses even if the matrimonial property regime is governed by the law of foreign state. On the other hand, even if there were other restrictions on the spouse´s powers to dispose of the real property owned by him / her alone which are derived from the applicable foreign law, the point of departure is that only this restriction based on the Finnish Marriage Act and mentioned above would be applied to the conveyance of a property situated in Finland (section 135, subsection 1, item 1).

If there’s a court decision on which the transmission or modification is based on, the content of the court decision defines which are the requirements to register.

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.

Transaction of real property situated in Finland must be made according to the Finnish law.  That means that the transaction must be made in the presence of both parties, the seller and Janos, and a public purchase witness or in digital form in Property Transaction Service (use of the PTS presupposes a Finnish personal ID number).  After transaction Janos must register his ownership in the fixed time period of six months. If he doesn’t do that in time, there might be consequences with tax payments (higher taxes).

However, the above mentioned is based on the view that in Finland the principle of separate ownership is the point of departure even between the married couples. According to that point of departure Janos is able to be a sole proprietor of a real estate. If he alone has signed the transfer contract (in Finland the transfer contract and deed are the same thing), he is deemed the only owner of the property. The fact that he is married does not bring anything new to this conception.

The situation becomes more complicated if Janos is married and if the applicable law concerning the matrimonial property regimes of the spouses is other than the Finnish Marriage Act. It is possible that the applicable law doesn´t accept the principle of separate ownership between the spouses. The property, at least some kind of property, e.g. real property, may be deemed ex lege joint property of the spouses if it is acquired during the marriage. This concerns even the property which the other spouse has bought or otherwise acquired alone during the marriage.

If the “matrimonial economic regime of community of joint assets” means what is just mentioned in the text above it seems that the registrar should take this special relationship between Janos and Elena into account. This raises a question whether the property can be registered in the names of Janos alone.

The answer is the same if dealing with registered partnership.

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.

When Michelle applies for registration of her right of usufruct, the registrar takes into account her connection to a foreign state. It is checked if she is married. If so, the registrar decides which is the applicable law concerning the matrimonial property regime between the spouses. If it is other than the Finnish law, Michelle is exhorted to give reliable information of its contents. The registrar discovers that according to the applicable law the matrimonial property regime to be applied to spouses is a joint community one. This raises the question whether the right of usufruct belongs to the spouses together and whether it is therefore not allowed to register Michelle as the only holder of the right of usufruct in the land register. However, when Michelle submits to the registrar the agreement entered into by her and her husband and according to which the matrimonial property regime to be applied to them is the separation of assets one, the registrar can accept Michelle´s petition to register her as the holder of the right of usufruct alone. The registration is also made so that no restriction or limitation derived from her marriage appear in the registry.

The answer is the same if dealing with registered partnership.