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?

For the purposes of registration, a deed of transfer need not contain matrimonial information about the new proprietor. We have no requirement to check the rights of married persons or same sex partners and we will rely on the applicant’s certification that the deed is valid. Both the applicant and submitting agent are under a statutory obligation not to make the land register inaccurate.

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?

We must enter in the proprietorship section of the title sheet (a) the name and designation of the proprietor, and (b) the respective shares of the proprietors in the case of ownership in common.

The description of the party to whom ownership is transferring will be shown in line with the wording of the deed.

If the wording of the transfer deed describes the parties as “spouses” this will be included in the proprietorship section of the title sheet.

In the case of ownership as tenants in common, if the deed does not specify the shares of the new proprietors, then the wording “equally between them” will be shown in the proprietorship section of the title sheet.

No information on the matrimonial property regime will be mentioned in any title sheet on the land register.

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

We will not demand proof of a married proprietor’s matrimonial property regime before registering any modification in the title. We rely upon the certification of the applicant and submitting agent to confirm that the deed of transfer is valid, that all appropriate statutory procedures have been complied with, and that the registration of the deed will not make the land register inaccurate. While we do not demand proof of a married proprietor’s matrimonial property regime, the legal professional drafting the deed, and the agent submitting the application for registration, will want to be satisfied that all appropriate statutory procedures and requirements have been complied with before submitting the application for registration.

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 will be registered as sole proprietor – the land register entry will make no mention of Elena. The entry on the land register will contain no information of the matrimonial property regime.

We will not demand information about the civil status of Janos, the identification of Elena his spouse, or information of the matrimonial property regime.

Any rights of a spouse or civil partner arise by operation of law and do not require to appear in the land register. The right, in respect of both matrimonial rights and civil partnerships, is typically one of a continued right of occupation rather than a direct prohibition or restriction on sale of the property.

If a future disposition performed solely by Janos to a third party in good faith was submitted for registration it would be registered.

The same process would apply in respect of a married couple and civil partners.

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.

Non property owning spouses or partners can consent to sales or renounce their rights under the Matrimonial Homes (Family Protection) (Scotland) Act 1981 and the Civil Partnership Act 2004.

These are ‘off-register’ activities and any evidence relating to these types of acts are a matter for the parties to the transaction and are not needed in support of an application for registration and will not be disclosed in the land register.

The same process would apply in respect of a married couple and civil partners.