Land registry and the family home protective rules
The main legal rule on this field is article 1320 Civil Code:
The consent of both spouses or, as the case may be, judicial authorization shall be required to dispose of rights over the marital home and the furniture ordinarily used by the family, even if such rights should belong to a single spouse. The erroneous or false declaration concerning the nature of the home by the person who disposes of it shall not prejudice the acquirer in good faith”. (Similar dispositions are established by “foral” laws, those applicable in some Regions of Spain instead of Common Civil Law).
Pietro had inherited a house from his parents’ succession. He is registered in the Land Book as sole owner. After that, he marries Sofía and they establish their family home at that house, where they live with their two little children.
Now, Pietro has received a very interesting offer for the house from an Investing company called Paradise Rooms SA, so he decides to sell it. Pietro and the representative director of the company have signed the purchase contract before the notary and have sent it to the land registry to register the new owner.
In the event that Pietro wants to register this deed of transfer, assuming all the formal requirements are accomplished, the Registrar will check if Pietro is married, and if he is, and the house he is selling is the family home, he will not be able to dispose of any rights over that marital home without his spouse consent (even if it is not a common property). In other words, any a transfer of a family home needs the consent of both spouses regardless who is the owner or if it is registered on favour of one of them as particular property.
In conclusion, in case of selling of a flat, apartment, or any kind of house registered as private property of a married person, the deed must state that the asset is not a “family home” ( with no need of further prove but subject to penalty default for false declare on public document) or the consent of both spouses ( the owner and the one that is not).
In the case of registered partners, provisions protecting family home do exist in some Autonomous Communities, for example in Cataluña, and in that case the answer would be the same as in the case of marriage: both member of the registered partnership should give consent to convey on the family home or the deed must state that the asset is not a “family home” ( with no need of further prove but subject to penalty fault for false declare on public document).
In any other case, as no limit to the right of disposal is previously regarded in the Land Registry, the member of the registered couple could convey by himself over the inherited property.
Other Overriding mandatory provisions in family law
There is a comprehensive legal regulation related to the marital home:
- To dispose of rights over the family home.
- To constitute mortgages on it.
- To foreclose on those mortgages.
- In seizure orders