What to Watch Out for When Selling Real Estate During Marriage?

What does the Land Registry record show?

But beware! If you or only your spouse are listed as the owner in the Land Registry, you cannot automatically conclude that the property is not part of the joint property of spouses (SJM) based on this record. In such a case, it is necessary to further examine whether the property, despite such a record in the Land Registry, does in fact fall under the SJM.

Does the property actually fall under the SJM?

To assess whether a property is in the exclusive ownership of one of the spouses or falls under the SJM, it is first necessary to assess on what legal basis and at what time the spouse acquired the property.

If a spouse acquired the property before entering into the marriage, and the SJM was not extended to include this property during the marriage, then it is in the exclusive ownership of that spouse. The same will be true if the spouse acquired the property through inheritance or a gift agreement, regardless of whether they were already married or if it happened before the marriage.

If a spouse acquired the property based on a purchase agreement after entering into the marriage, then unless it falls under statutory exceptions, such property will be part of the SJM, even if only one of the spouses concluded and signed the purchase agreement.

Procedure for selling

1. The property is not in the SJM

If the property you want to sell is not in the SJM, it does not mean that there is nothing else to address and that the property can be sold without any involvement of your spouse. First, it is necessary to consider whether a family household exists in the property that is not in the SJM (for more on this topic, see our separate article, available here).

In short, we can state that if there is no family household in the property being sold, you can conclude the purchase agreement and sell the property without your spouse's consent and involvement. If a family household did exist there, it would be essential for your spouse to give consent to the sale of the property, or ideally, to also sign the purchase agreement with you as an accessory party.

2. The property is in the SJM

If the property is part of the SJM, then the involvement of your spouse is, of course, essential. In such a case, this will be a so-called non-routine matter (for more on this topic, see our separate article, available here), for which you need your spouse's consent.

The ideal procedure should be that you both sign the purchase agreement on the seller's side – both you and your spouse. If, for example, the purchase agreement has already been signed and the spouse was left out of the process, it will be necessary to obtain the spouse's written consent to the sale of the property, or rather, to the conclusion of this specific purchase agreement.

Otherwise, the spouse could in the future dispute the validity of the concluded purchase agreement, which could cause significant problems for both you and the person who bought the property from you (especially if the buyer financed the purchase with a mortgage loan). In such a case, you could also face a great risk that the buyer would claim damages from you that arose as a result of your incorrect procedure.

Conclusion

As is clear from the above, even selling a property is not as straightforward and simple as it might seem at first glance. It is therefore always advisable to consult everything with an expert so that an incorrectly chosen procedure cannot lead to situations that would mean considerable problems in the future for both you and the buyer.

As a rule, the costs of having a professional assess the matter and prepare the contractual documentation are only a fraction of the potential costs that can arise if a problem occurs. By establishing the correct procedure and having the contractual documentation prepared by a professional, you can prevent future worries and costs, both financial and time-related.

From the buyer's side, it is also always advisable to check, within their means, whether the property they intend to buy belongs to the seller's SJM, at least by checking the acquisition title, which can be obtained from the relevant Land Registry.

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