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?

As explained in question 2, the land register as such does not contain information about the matrimonial property regime. Instead, it only indicates the civil status of the entitled parties at the time the registered transaction took place. The name of the spouse is only registered if it is contained in the deed. However, it is not mandatory to indicate the name of the spouse. The information about the civil status of the parties is contained in the notarial deed respectively the court decision (if it concerns a division of the assets as a consequence of a divorce). It is then the task of the notary/court to control the civil status. An additional proof is not required to register the document in the land register as it is not the task of the land registrar to actively control that information.

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?

If only one of the spouses acquires real estate, then in principle only that spouse will be registered in the land register. The civil status (marital status) of the buyer has to be mentioned in the deed, according to article 18 of the Dutch Cadaster Act  (art 18 Kadasterwet). In case the name of the spouse is mentioned in the deed, then this information will also be registered in the Land Registry system. It is however not mandatory to include the spouse’s name in the deed. Consent of the other spouse is only needed if the real estate transaction concerns the family home the spouses. It is then the task of the notary to control whether the consent has been given. The land registrar does not actively control whether this requirement has been fulfilled. If both spouses acquire real estate together, they will be both registered in the land register with the shares that are indicated in the notarial deed.

As stated in question 2, the land register does not contain information about the matrimonial property regime but indicates the civil status of the entitled parties at the time the registered transaction took place. In other words, the land register does not necessarily reflect the actual civil status of the spouses. Thus, in case the spouses have divorced and one of them is re-married, only the original two spouses (currently ex-spouses) are mentioned in the Land Registry system. Registering at the time the registration took place does imply the notary has to check whether the civil/marital status has not changed since the time of registration. The name of the spouse is only registered if it is contained in the deed. However, it is not mandatory to indicate the name of the spouse.

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

It is not necessary to submit proof of the matrimonial property regime that the parties are subject to. It is the task of the notary/court (depending on the document that is offered for registration in the land register) to identify the applicable matrimonial property regime and to analyze its consequences for the pursued transaction. An additional proof is not required to register the document in the land register as it is not the task of the land registrar to actively control that information. The consent of the proprietor’s spouse is only required if the transaction (i.e. if one of the spouses intends to buy or sell a house or conclude a mortgage agreement) concerns the spouses’ family home.

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.

In the land register, Janos will be registered as the sole proprietor. The land registrar does not demand information about the matrimonial property regime (even if it concerns a foreign matrimonial property regime) or about the identification of the spouse. The notary who drafts the deed of transfer of ownership is obliged to control the marital status and the identification of the parties. The statement of the civil status of the parties to the transaction in question in the deed however constitutes a legal requirement (article 18 (1) Cadastre Act). Nevertheless, ‘single’ or ‘widow’ or not an official civil status in the Netherlands. It will only be ‘married’ of ‘registered partner’. The name of the spouse is only registered if it is contained in the deed.

If in the future, Janos solely performs a disposition, which complies with the formal registration requirements, the land registrar is not allowed to refuse its registration in accordance with article 3:19 (1) Dutch Civil Code. The duty to control whether the consent of the spouse is needed falls within the notary’s area of responsibility. If the estate that Janos acquires is not the family home, he does not need Maria’s consent (article 1:88 Dutch Civil Code).

Furthermore, it needs to be reaffirmed that third parties, who acquire the real estate from Janos, will only enjoy third party protection for matters regarding the matrimonial property regime if they consulted the matrimonial property register (article 1:116 (1) Dutch Civil Code).

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.

Considering that the deed of transfer states that only Michelle is entitled to the right of usufruct, she will be registered as sole owner of that right in the land register. Her civil status will however be registered in the land register.