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

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?

To be registered as the sole owner, the buyer has to prove:

• that he/she is unmarried, divorced or widowed, or
• that he/she is married, but the spouses chose the separation of assets;

Even if the couple chose a community regime, according to art. 179 of the Italian Civil code2, goods are personal if:

a) they have been purchased before marriage,
b) they have been received by a donation deed or due to mortis causa successio,
c) they are strictly personal goods,
d) they are used for one’s work,
e) they’ve been obtained as a compensation of an offence,
f) the money used to pay the registered property has been obtained selling personal goods. In this case, the other spouse must clearly declare it inside the deed (only if the couple chose the community regime).

If the couple chose the separation of assets regime, each spouse must subscribe the deed.
If the spouses chose a community regime, the deed can be subscribed also by only one of the spouses2: it will produce its effects in favour of both the spouses; the title (authenticated by a notary) should contain:

• the personal data of both the spouses,
• their matrimonial property regime,
• the foreign applicable law, if they are foreigners.

The person concerned has to be previously informed by the notary about the potential criminal implications of false declarations.
Also in this case it is possible to provide a certificate of marriage issued by the Civil Register Office or a copy of the agreement between spouses that changed the legal defautl regime (in Italy: the community regime).

Foreign spouses has no additional requirements to prove.

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?

A married person is entered in the Land Registry in different ways, depending if the spouses chose the legal default property regime (community regime) or a separation of assets.
When the couple chose the separation of assets both spouses appear as proprietors with shares, in the same way as a community of shares.

M***** S***, M*****83P44L174M nato/nata il 04/09/1983 a Tione di Trento – quota 1/2
20/02/2015 – G.N. 525/1 INTAVOLAZIONE DIRITTO DI PROPRIETÀ per 1/2
Contratto d.d. 18/02/2015

T**** D*******, T*****71A03L224Y nato/nata il 03/01/1971 a Tornareccio – quota 1/2
20/02/2015 – G.N. 525/1 INTAVOLAZIONE DIRITTO DI PROPRIETÀ per 1/2
Contratto d.d. 18/02/2015

If they chose the community regime as their matrimonial property regime, both of them appear as proprietors too, but in the Land Registry they appear joint together through the words “comunione legale”.

A******* M******, N******70R18D796C nato/nata il 18/10/1970 a Fresagrandinaria – comunione legale – quota 1/2
F******* D******, F*****70E54Z133R nato/nata il 14/05/1970 a Baden
20/08/1997 – G.N. 2201/1 INTAVOLAZIONE DIRITTO DI PROPRIETÀ per 1/2
Contratto d.d. 29/06/2001

F******* D******, F*****70E54Z133R nato/nata il 14/05/1970 a Baden – comunione legale – quota 1/2
A******* M******, N*****70R18D796C nato/nata il 18/10/1970 a Fresagrandinaria
20/08/1997 – G.N. 2201/1 INTAVOLAZIONE DIRITTO DI PROPRIETÀ per 1/2
Contratto d.d. 29/06/2001

So, in L.R. entries, the only matrimonial regime that must be clearly publicized, is the community regime, due to its consequences on the circulation of rights: in this case the spouses are bonded togheter.

For technical reasons shares are shown: otherwise the software won’t be able to organise the L.R. Book; legally speaking, shares shouldn’t be displayed in presence of a community regime.

If the couple is from another State it is mandatory to mention the foreign law which governs the community regime.

There are no difference when the proprietors are engaged in a registered partnership.

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

In any case, a married person has to prove the change of his/her matrimonial property regime by providing an authentic copy of the title (agreement between spouses, decision of a Court) or a certificate of marriage issued by the Civil Register Office (in this case, the certificate will show the former and the new matrimonial property regime).

It is also possible to declare the regime in a clause of the contract.

The same rules are taken into consideration in case of foreign spouses or in presence of a registered partnership.

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.

Janos won’t be registered as sole proprietor, because in case of community of joint assets is possible for one of the spouse to act solely for both. The name of his spouse and also to the matrimonial property regime of community of joint assets shall be entered in the Land Book.

In case the deed says nothing about it, the registry will demand information about the civil status (married/ single (widow) of Janos. The spouses (or the notary) shall have to provide a copy of the matrimonial register which contains the name of the spouses and the matrimonial property regime they chose when they got married or after the marriage (with an agreement between them), if married.

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.

In this case it is mandatory for the spouses to proof that they chose the property separation of assets regime, presenting a copy of the deed or a document issued by the Civil Registry Office. First this agreement should be registered in the same Civil Registry, in which the marriage was registered.

This rules apply also to registered partnerships.