How can the existence of a so-called family household complicate the sale of a property owned by one spouse?

The sale of a property owned solely by one spouse may seem a simple matter at first sight, but in practice it may give rise to a number of legal complications, especially if the property is used as a family household. In this article, you can learn more not only about the legal aspects of selling a property that is owned by only one spouse but in which there is a so-called family household, but also about how to protect the rights of the other spouse and the family as a whole.

Sole ownership vs. community of property

Before the actual sale, it is crucial to understand the difference between sole ownership and community property. Real estate can be owned exclusively by one spouse if it was acquired before the marriage, inherited, donated or acquired in some other way that the law defines as a reason for exclusive ownership by only one spouse. However, real estate acquired during the marriage is usually part of the community property of the spouses, with exceptions provided for by law.

The family home and its legal protection

What is a so-called family household? You are talking about a family home if your property serves as a place where the family lives and resides. Therefore, if the property is a family home as defined by law, other legal aspects come into play that limit the rights of the sole owner of the property. Although the property is the property of only one spouse, the law provides special protection to the other spouse in order to avoid situations where the sale of the property could disrupt the stability of family life.

According to Article 747 of the Civil Code, the owner of real estate used as a family home cannot sell or encumber it without the consent of the other spouse. This consent is required whether or not the other spouse has ownership of the property. This requirement for consent is necessary to ensure that the sale of the property does not jeopardise the family's home and livelihood.

Consequences of lack of consent

If one spouse, as the owner of the property, sells the property without the other spouse's consent, there can be serious legal consequences. Under the Civil Code, the other spouse can challenge the sale in court and seek to have the sale declared void. In this way, not only the interest of the other spouse is protected, but also the interest of the children and the whole family in preserving the family home.

It should be borne in mind that the protection of the family home applies not only to the sale, but also to other legal actions concerning the property, such as the creation of a mortgage or the rental of the property.

Practical steps when selling and buying a property

If you are the sole owner of a property in which a family household exists, you must obtain the other spouse's written consent to the sale. This consent should be unambiguous and specify the conditions under which the other spouse is willing to approve the sale. The most ideal scenario is that the other spouse will also sign the contract of sale serving to sell the property, as an intervener.

Since it is not possible to ascertain whether there is a matrimonial household in the property from the Land Registry, one should always be cautious when buying from an owner who is married. Thus, if you are buying a property from an owner who is married and claims that there is no family household in the property, have the seller incorporate this statement into the written purchase agreement, subject to penalty of a contractual penalty if the statement is found to be untrue.

The above methods can eliminate, or at least significantly reduce, the risk of potential problems associated with the existence of a family household in the property being sold/purchased. Otherwise, the declaration of invalidity of the concluded purchase contract may cause a lot of inconvenience for both the seller and the buyer, especially if the buyer will finance the purchase of the property with a mortgage loan.

Conclusion

The sale of a property owned solely by one spouse and used as a family home requires careful legal evaluation and consistency in the preparation of the contractual documentation for the transfer of the property. If the contractual documentation and the legal assessment of the situation are not properly set up, there can be very unpleasant consequences for both the seller and the buyer. Therefore, it is always advisable to consult with an expert when selling/purchasing a property so that the contractual documentation is properly set up and possible risks are eliminated as much as possible.