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?
The Swedish land register does not contain information about civil status or matrimonial information. The land registration authority does not even have to investigate this, if the application only involves acquisition and registration of title.
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?
Information in the land register will not include information about civil status.
Registration of ownership/title can only be registered separately for each and every individual. It is not possible to register a joint ownership in the way that Spouses A and B own the property together with 1/1. If the spouses are supposed to own the property together they will be registered with the shares they have
acquired in the transfer deed. For example ½ each.
There is no information about the proprietors matrimonial situation or their matrimonial property regime, in the land register itself. Regarding Swedish spouses, the land register has automatic access to information about their civil status, from the Swedish tax agency.
The Swedish law treats registered partners exactly the same as married spouses.
3. What will the Land Registry demand from a married proprietor to register the transmission or any modification of his/her registered title?
For Swedish citizens, the Swedish default matrimonial property regime (deriving from law) will be presumed. In order to transfer or mortgage the property, a consent is required from the other spouse. Instead of a consent, the applicant can provide documents that shows that no consent is necessary. For example in the shape of a prenuptial agreement or a marriage agreement that stipulates that the immovable property is private and not marital property. The Swedish legal presumption is that all property, acquired before or during the marriage is marital property. There are legal exceptions (gifts or wills that clearly states that the received property shall be private property).
If the acting party is a foreign citizen and he or she transfers or mortgages the property, the land registration authority will need information if he or she is or has been married during the time they have owned the property. This information could be provided in the form of an excerpt from a foreign national register or a certificate from someone who knows the person, or from a lawyer etc. The information is not visible in the land register but will be available in the land registry’s handling system.
Lack of necessary consent from the other spouse (regarding transfer of property and mortgages) is a reason for dormant registration. Consent will generally always be deemed necessary for the joint family home. Otherwise it will depend on what country’s law is applicable and if there are valid marriage agreements etc. The Land Registry will often require some sort of proof or inquiry about what law is applicable and also about the regulation of this law. We often receive this information from the applicant in the shape of a lawyers certificate.
If the spouses are Swedish residents, an agreement about a decided matrimonial property regime has to be registered (this is not yet the case but will be later in 2019). This will follow from additional Swedish regulation in order to “adapt” to the EU regulation.
A registered partner would be treated exactly the same way as a married person.
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.
Will Janos be registered as sole proprietor? Will the entry make any reference to the name of his spouse? Or his matrimonial property regime?
Janos would be registered as the sole registered owner. Purchase or any other form of acquisition of immovable property does not require consent from the other spouse according to Swedish law. The entry in the land register will not mention the spouse or the matrimonial regime and no investigation will be made about this.
Inquiries will be made about civil status and matrimonial property regimes, if the owner of the property transfers or mortgages the property.
The land registration authority would by manual control demand information about Janos’s civil status (if he doesn’t have a Swedish personal code number) and then require information about whether his disposal of the property requires consent from his spouse. Title registration wouldn’t be granted until the applicant has shown proof of the foreign matrimonial regime and if the foreign law requires consent from the spouse. The Swedish land registration would only grant a dormant title until such a consent has been performed.
Registered partners are treated exactly the same as married couples.
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.
No information about civil status or matrimonial property regime will ever be entered in the land register, regardless of the applicants’ wishes. If Michelle wants to sell or mortgage the property, this information would be considered but it will not be show in the land register.
Registered partners are treated exactly the same as married couples