Notarized consent of the spouse for the purchase. Do I need my spouse's consent to buy an apartment? Answered by partner at Tonkiy and Partners, lawyer Denis Stepkin

Often property issues become the cause of disagreements between spouses. There are cases when a family member who earns more has a desire to purchase real estate or take out a mortgage, will he need the consent of his spouse to purchase an apartment?

Cases of acquisition of real estate by one of the spouses

Let's look at the main cases that you may encounter when buying an apartment.

Sole purchase

The purchase of an apartment for the sole ownership of a married person is possible in the following cases:

1. Similar actions are prescribed in the previously drawn up marriage contract.
2. The apartment is purchased using donated or inherited funds. In this case, an option is possible when one type of housing is inherited, and after its sale another is purchased.
3. At the time of the transaction, the spouses no longer manage the household together. In this case, funds for the purchase of real estate are not regarded as taken from the general family budget.

Drawing up a contract without the consent of the spouse for the purchase of real estate is fraught with other cases litigation and cancellation of the transaction.

Mortgage

When applying for a mortgage, banks will mandatory require consent to purchase the spouse’s apartment if the agreement does not provide for his participation as a co-borrower. Having a spouse’s consent certified by a notary to purchase real estate will act as a kind of guarantee for the bank. Firstly, this will confirm that there is no concealment of savings from the rest of the family members and the transaction is made officially. And secondly, in the event of the debtor’s insolvency, the spouse will be obliged to make payments on the loan on a general basis.

It’s a different matter if the mortgage was taken out before the marriage relationship was registered. Then, in the event of divorce, the owner of the apartment will be obliged to pay half of the bank contributions paid during the marriage to the ex-spouse, since the money for compensation credit funds were taken from the family budget. This issue can be resolved by allocating a share in favor of the second spouse if the mortgage has been fully repaid over the years of the family relationship.

The notarized consent of the spouse to purchase an apartment becomes an official document and without it there may be problems at the Registration Chamber with the registration of rights to property purchased for sole use.

You need to know that consent to the purchase of a spouse’s apartment is certified with only one signature without proper notarization has no legal force.

To find out all the nuances and aspects of how to formalize your spouse’s consent to a specific apartment or to the purchase of real estate in general, you need to contact a notary’s office. There is no official form or strict rules for registration as such for consent. The only thing is that the spouse’s notarized consent to purchase real estate should be called “Consent” and printed to give greater credibility to this document.

Also, the document should clearly indicate the details of the spouse - full name, date of birth, series and number of the passport, when the document was issued and by whom, as well as an identification number, citizenship and residential address. Next, you need to specify the conditions for purchasing the apartment. As a rule, they write down exact data or a general wording that “you trust your spouse to choose the apartment, price, seller and other conditions.”

The last line is the date, surname with the initials of the spouse and signature. Do not forget that all numbers, from the apartment number to the cost, must be additionally duplicated in words.

The cost of a notarized consent is usually about 1000 rubles. The amount may vary slightly due to possible additional conditions. The validity period of a spouse’s consent to purchase an apartment is not regulated by law. However for public services a spouse's consent when purchasing real estate issued more than 3 years ago is not considered valid. If the limitation period is indicated at the notary's office, then it is usually 1 year from the moment the consent is signed.

Power of attorney

The question often arises among married couples whether the consent of the spouse is needed to purchase an apartment when the transaction is made by proxy. If a husband or wife acts on behalf of a second family member under a power of attorney issued to him, the notarized consent of the spouse to purchase an apartment is not required at all. Then it is officially considered that the authorized person is aware of the fact of the transaction being performed and, with his signature, confirms his consent to carry out such an operation.

If on behalf of one of the representatives of the family couple, by proxy, an apartment is purchased by a third party, for example, a realtor, then in this case the consent of the second spouse is required. There are cases when the spouse himself acts under a power of attorney issued in the interests of a third party in his name. Is the consent of the spouse required to purchase an apartment in this case?

The reasonable answer is no, since the apartment does not become the property of the spouse, but is acquired for the benefit of another person. The price of a regular power of attorney is about 500 rubles. The cost of a general power of attorney can reach 2,000 rubles.

The consent of the spouse to purchase an apartment is required in most cases. There are exceptions, however, as always. They were also stated at the beginning of the article. We hope the article helped resolve the issue.

Since 2017, registration of transactions for the purchase of apartments is carried out in the absence of a mandatory document - a notarized consent of the spouse to purchase real estate. However, the need to obtain written approval has been established by law to date.

Property acquired during marriage, except for that received by inheritance or gift, is considered joint. Spouses must dispose of it equally, even if only one of the specified family members is registered as the owner of the object. In order to avoid recognition of the transaction as illegal, the mandatory procedure is to obtain the notarized consent of the second spouse to purchase an apartment or sell it.

The rule prescribing the mandatory procedure for obtaining the appropriate approval is set out in the following documents:

Also, the notarized consent of the spouse to purchase real estate (apartment or house) with a mortgage will be required by the bank, referring to Art. 7 Federal Law “On Mortgage”. Exception: the second family member is a co-borrower under the agreement mortgage lending.

Developers selling apartments under contracts equity participation, also when submitting documentation to Rosreestr, they are asked to provide the specified paper, even in situations of assignment of housing rights under construction (this is the position of the registration authority).

Registration procedure

The document must be prepared only by a notary. There is an option to prepare the text yourself and arrange it on a notary’s letterhead, but there is no reason to do so. In notary offices, such papers are prepared in half an hour.

Visit to a notary and documents

To visit a notary's office, it is better to make an appointment for a specific time so as not to sit in line for an appointment. Only the spouse from whom approval is required can come to the notary. You must have with you:

1. Passport.
2. Marriage certificate.

The document must contain the following information.

Table 1. Information indicated in the notarial consent of the spouse

Sample document

The notary has established a certain form. You can see what a completed notary form looks like in the example provided:

Download a template to fill out, which must subsequently be certified.

Price

Tariffs for registration are set uniformly by the Notary Chamber of the region. The difference in how much this service costs depends on the tariff for technical work. The approximate cost is about 2000 rubles.

Important! The validity period of consent is not established by law. It is considered to be valid until the consent is withdrawn by the spouse who gave it.

When consent is not needed

Property solely belongs to one of the spouses if it was received by him by inheritance or as a gift, therefore, consent is not required for its sale.

It is not necessary when transferring any property as a gift to one of the spouses.

In addition to those indicated, there are a number of other circumstances in transactions that exclude the procedure under consideration, but not everything is so simple here.

When concluding a marriage contract

The Family Code (Article 40) provides for the conclusion of an agreement between citizens getting married with the possibility of stipulating in it the status and ownership of valuables and real estate acquired during the marriage. Accordingly, provided that certain property is assigned to one family member, the other will not have to document its acquisition.

When purchasing commercial real estate

It is believed that if the purchased premises are classified as non-residential, commercial, then the notarized consent of the spouse for the purchase of real estate is not required. However, this position is not supported by law. In the case where one of the married couple runs a business and acts as an entrepreneur, there is one option, but if premises with a commercial purpose are purchased an individual for money joint budget– the situation is different. In fact, commercial real estate doesn't have any fundamental differences for the situation under consideration. The contract looks similar. The procedure for registering rights is absolutely the same.

In addition, the apartments are also classified by law as commercial market, but are bought by citizens for family living as an economical option.

Therefore, many experts are of the opinion that the purchase of any type of real estate from the family budget must be approved.

When allocating shares

When purchasing real estate, the parties have the right to immediately allocate their shares. In this case, consent is not required. The size of the share does not matter; the main thing is the direct participation of the other half in the transaction and confirmation of approval by signature in the purchase and sale agreement.

When a spouse issues a power of attorney for the second spouse to purchase

The issuance of a power of attorney to represent the interests of a person assumes that the principal fully relies on the person indicated by him in the document.

The power of attorney format involves performing actions on behalf of your other half, but independently, and therefore replaces two documents at once.

When specified in the purchase agreement as joint ownership

Important! If the spouses divorced but did not divide the property, then consent is required. After the court decision on divorce has been rendered and entered into legal force, in relation to former members families are subject to the rules of the civil code.

Consequences of lack of consent

If the seller has not checked the existence of an agreement reached between the buyers - a married couple - he subsequently risks, like the married citizen himself, who ignored the requirements of the law.

Refusal of registration

Until 2017, Rosreestr required that a form of notarized consent of the spouse be included in the documentation package submitted for registration, otherwise it would refuse registration. Today, things are different - in connection with the documentation is accepted, and even the transfer of rights from one owner to another is registered, but a note is made in the register about the possibility of interested parties to challenge the transaction.

Will the other half of the buyer ultimately challenge unfair spending? common money, is unknown, but there is such a risk.

Probability of challenging the transaction

To protect the rights of a person whose opinion was not taken into account by his other half when disposing of their joint funds, the law provides for the right to challenge such a transaction. A deprived citizen can exercise his right within 1 year from the moment he receives information about the dishonest behavior of his wife/husband.

What you need to know about a voidable transaction:

• recognized as such only by court decision;
• the applicant may be a person whose interests are affected (the marriage is registered, not dissolved, and in the event of dissolution, there is no court decision on the division of property);
• in the event that the applicant can confirm the impossibility of applying within the one-year period specified by law for a valid reason, it is possible to extend the period for applying for judicial protection;
• a positive result of the consideration of the claim will be a return to the “original position”, that is, the buyer will receive a refund, and the seller will receive back the sold apartment.

If registration takes place, the property will become common property

It is unlikely that you will be able to buy an apartment secretly from your loved one. But even if we allow this option, in the absence of a marriage contract, the acquired residential premises will be considered common property. Family members must dispose of it equally. In case of divorce, property is distributed equally. If the object is indivisible, one spouse buys half of it from the other, unless otherwise agreed.

The change in legislation resulted in the absence of the requirement of the registration authority to issue written approval of the actions of the person with whom the marriage was concluded. But an irremovable contradiction to the Family Code remained, and in addition, a real possibility arose of putting a mark in the Real Estate Register of contestability.

Given these circumstances, it is better to prepare the spouse’s approval in advance or, being on the seller’s side, insist on receiving a certified form by the buyer and not wait for any catch on the other side.

Additional details in the video:

Higher education. Orenburgsky State University(specialization: economics and management of heavy engineering enterprises).
January 24, 2018.

A married citizen is not completely free in matters of purchase and sale, and many who want to buy or sell real estate do not know for sure when to engage a notary. It turns out that there are some nuances in the preparation of legal papers that are best known in advance.

Dear readers! Our articles talk about typical solutions legal issues, but each case is unique.

If you want to know how to solve exactly your problem - contact the online consultant form on the right or call the numbers below. It's fast and free!

When is spousal consent required for transactions?

If the transaction occurs in violation of the law, then the second representative of the couple will be able to challenge it, having been declared invalid by the court, so the law must be observed in any case.

When making an act of purchase, it seems that there is no need to confirm the consent of the other half (clause 2 of Article 35 of the Family Code), but squandering the family budget without the knowledge of the spouse is an action that can lead to unpleasant consequences in the form of litigation.

Spouses should discuss important purchases together and the final decision can only be made mutually; it is impossible to go against the opinion of the second member of the couple; in real estate transactions, notarial consent – required condition (Clause 3 of Article 35 of the RF IC).

In addition, have on hand a notarized document confirming the spouse’s consent to the transaction necessary for all types of transactions, where:

• state registration will be required;
• will need to be notarized.

Notarization is required for transactions listed in Art. 339, art. 584 Civil Code:

1. mortgage agreement;
2. property pledge agreement;
3. annuity agreement.

Everyone registering in government agencies transactions concern the whole family, so ignoring the opinion of the second member of the couple is unacceptable. These are the following transactions:

• sale of residential buildings or premises;
• mortgage agreement;
• sale of company, company, workshop, etc.;
• Rental Property for any purpose;
• donation real estate.

All these types of transactions should not be left to chance by the other spouse, even if the rules do not require notarized consent.

Important! Objects privatized even during marriage do not require the consent of the spouse in transactions with them.

The fact is that privatization is an act of goodwill of the state in relation to a citizen as an individual person, it is a targeted act, and the second spouse cannot have any rights to this property.

If there is a tendency in marital relationships towards instability, then it is better to play it safe for each of the couple and confirm the transaction with the consent of another by notarizing the paper, even if the law does not strictly require it.

Sample of a notarized document

The purpose of such a document is to record the awareness of the second spouse and his lack of objections to the execution of the deed of sale.

It is not at all necessary to write down the data of a specific real estate property - address, area, etc. in this document, it will be consent in principle to register the purchase and sale of real estate is quite sufficient in a specific locality or area.

Such a document is legal, therefore it is not written in free form on any piece of paper, but printed on special paper, which is available to notaries.

It's called "Consent", under this name on the left is indicated locality, his country affiliation, on the next line on the left is the date in full in words.

Below from the paragraph place a descriptive part, in which they write in the first person: I, citizen such and such (in full), date and place of birth, gender, passport details(with information about the date of issue and the issuing authority), then - information about the place and date of registration indicating the department code/

• Marriage certificate, its number, date of issue and name of the authority that issued this document,
• number of the registration record, for the purchase at a price and on terms at his discretion, of any apartment located in (name of locality).

Below with new line the notary writes that the meaning of Articles 34 and 35 of the RF IC is explained to the person signing this document. This is followed by the signature of the person who agreed to the spouse’s purchase of the apartment, with his full name deciphered.

The date and details of the notary are also indicated, and mandatory explanation of the cost of services. The notary's signature completing this legal document is sealed.

“Consent” is registered by a notary and the number is entered into this document. It is not necessary for both spouses to appear before the notary; it is enough if the one on whose behalf the document is drawn up arrives.

The main thing is that this person didn't forget to take your passport and. If “Consent” implies the purchase or sale of a specific property, then you also need documents relating to property rights this object.

How much does a notary service cost?

The fee for completing and registering the “Consent” is approximately 1,200 rubles.

This amount is minuscule compared to the possible material damage that an unscrupulous marriage partner can cause to the family, can't stop reasonable person in his intentions notarize consent.

Validity period of the spouse's consent to the transaction

The law does not limit the validity period of the spouse’s consent to the transaction. no specific time frame, but generally accepted norms in the notary office do not imply legal force if the document is older than three years.

For the purchase (sale) of land

The answer to this question is ambiguous. To purchase land plot registrar question about the need will not be installed(the requirement has been canceled since 03/01/13), so in this case the transaction will take place without unnecessary delays.

When it comes to sale of land, then the notarized consent of the spouse is necessary, since the registration rules provide for the presence of this document.

When purchasing land, a person is not required to present a document confirming the consent of his wife, but for his personal benefit and further trouble-free ownership of the plot, he must muster up the courage and ask the seller to show a stamp in his passport indicating the presence of a defect.

If the seller is married, then he must have the consent of his wife, and if divorced, then the date should be compared with the date of acquisition of the plot. If land was acquired during marriage, then such property is legally classified as joint property, and the ex-wife can lay claim to it.

To avoid problems in the future, it is necessary for the seller to notify the ex-wife and agree on this issue with her; the disagreement of the former half will cast doubt on the legality of the transaction, therefore agreement ex-wife seller needed.

To prevent such problems from arising, it is advisable to go to court during a divorce, then the question of notarial consent will not arise.

For sale car

It’s easy to imagine such a situation: a family lives The car was purchased during marriage and registered in the name of the husband. The person drives it, has documents for it and considers it his.

But by law sell a car without the notarized consent of the spouse he can not, since this is property acquired jointly.

Even if the sale takes place, then the spouse, having learned about the transaction, has the right to demand that half of the money received from the sale of the car be returned to her. The buyer will also be drawn into the process.

Within what period can I challenge a transaction?

Having learned about the transaction without his consent, the spouse has the right to apply to the court to declare it invalid within one year from the date when he learned about the completed act of purchase and sale of jointly acquired property.

The contract will be terminated if the injured spouse proves to the court that he is right.- complete ignorance of the intentions of your other half.

What are the reasons for lack of consent?

It is assumed that in a normal family spouses make decisions on the sale of large property jointly. However, in practice this is not entirely true, and the spouse’s consent may not be available for such reasons:

• people do not know about the need to draw up such a document;
• the spouse deliberately hides his desire to sell property;
• the transaction is executed by insufficiently competent people without the presence of a lawyer;
• the spouse categorically objects to the transaction and does not want to formalize consent;
• if the passport of the seller, who is actually legally married, does not have a marriage stamp, then even his consent will not be required knowledgeable of the law executive.

Any transaction - sales, purchases, donations, barter, etc. should be taken seriously having studied the law in detail. Only the presence of a third party in the form of a qualified notary will help avoid design flaws that could lead to the transaction being declared invalid.

In what cases is the spouse’s consent required and in what cases is it not when purchasing real estate, watch the video:

By law, an apartment acquired during marriage is considered joint property, even if it is registered in the name of one person. When buying (selling) a home, of course, the consent of one and the spouses is required and this is a mandatory condition. The proceeds from the sale are also shared and are at the disposal of both.

However, there are exceptions (contradictions) in the law. In what cases can you sell an apartment without consent, how to draw up an agreement correctly or how to challenge it, if necessary, we will consider in more detail in this article.

Dear reader! Our articles talk about typical ways to resolve legal issues, but each case is unique.

If you want to know how to solve exactly your problem - contact the online consultant form on the right or call by phone.

Family code

According to Article 35 of the Family Code, when completing a transaction when purchasing a home, one of the spouses does not require a notarized permission from the other. His consent is assumed by default. But in paragraph 3 of the same article, registration of any real estate transaction is impossible without the written, officially confirmed consent of the spouse. In court, he has the right to challenge the fact of the transaction. It turns out that there is a contradiction between two formulations in one article of the Family Code.

In fact, the fact of purchasing an apartment does not include obligations. Today, real estate transactions are considered valid immediately after signing the contract, and registration is a subsequent formality.

As for the disposal of property, the purchased housing is not yet the property of the spouses, which means that they do not have the right to manage someone else’s territory.

The apartment will be considered property only after completing the registration procedure and nothing else.

At the planning stage of purchasing a home, the buyer has only cash at his disposal, and not an apartment, and in reality, even at the time of registration when purchasing, consent from the spouse, certified by a notary, is not at all necessary.

On the other hand, the money is considered common and if the spouse does not agree to the transaction, he has the right through the court to declare it invalid due to ignoring the opinion of the second spouse.

It turns out there is a contradiction in the interpretation of one article of the law.

In order to avoid misunderstandings and facts for challenging the transaction in the future, it is, of course, advisable to confirm the consent officially by having the spouses visit a notary to confirm the consent of one of them, paying 100 rubles for the service, although this is an optional condition.

Sample document The spouse's consent to purchase an apartment is mandatory document

, which is required when registering the purchase and sale of real estate if the buyer of the apartment is one of a married couple. Its necessity is due to the fact that property acquired during a registered marriage is jointly acquired.

The funds of the husband and wife planned for the purchase of an apartment are also considered common, which means that if they are spent on the purchase of a particular property, the spouses must manage them jointly. That is why the spouse’s consent to purchase an apartment is necessary for the successful and legal execution of a purchase and sale agreement.

When is spousal consent not required?

1. Under a number of certain conditions, it is not required when purchasing an apartment: with the designation of all the conditions for the disposal of property between spouses in marriage, namely, deprivation of rights to an apartment for one of them in the event of acquisition.
2. Housing received as a gift or inheritance, is not considered jointly pressed.
3. If there is a power of attorney for the transaction, then if it is impossible for one of the spouses to be present during the transaction, the power of attorney will serve legal basis to provide the interests of the husband from the wife or vice versa. It turns out that, for example, a wife, on the basis of a power of attorney, has the right to sign any documents in the interests of her husband without his personal presence, as well as the fact that any other third party can act as a buyer, who will be entrusted with the entire process of conducting the transaction (a realtor, when undertakes the entire procedure on behalf of the buyer for the purchase (sale) of housing).
4. In case of divorce and having a certificate in hand the property division process is considered completed. Buying an apartment is possible without the consent of the other half. Only money can be considered common in a divorce, but not division of property. In this case, to confirm the fact of spending funds when buying an apartment, the consent of the other half must be officially certified by a notary.

Requirements for registration and form of the document

With consent, it means that the spouse approves of the transaction, thereby reflecting the will of his spouse, who will directly carry out such a transaction. To obtain consent, you need to contact a notary, provide your passports, marriage certificate and certify your consent by filling out a special form. sample or drawn up by the notary themselves.

The following are considered permitting documents for purchasing an apartment:

• applicants' passports or identification documents;
• Marriage certificate;
• title documents for the apartment indicating the address of the apartment expected to be purchased;

The husband who gave his wife permission to sell must familiarize himself with the sample application, and the notary, in turn, must explain all the nuances that may arise in a marriage if there is a need to divide property in the future.

Consent is official document. There must be degrees of protection, an official seal as confirmation of the transaction by the legal representative-notary. The text of the application specifies the duration of the agreement. It is better to draw it up right before the purchase and sale procedure.

Registration of consent

Consent certified by a notary is an official document, without which subsequent registration of the purchased apartment in Rosreestr is impossible, also in Companies House. Registration will be carried out for 1 person and in order to avoid nuances between spouses in the future, this fact should be taken into account at the planning stage of purchasing a home.

It is important that the execution of the consent document be drawn up in a legally competent manner, supported by signatures and an official seal. Otherwise, the document may subsequently turn out to be legally ineffective.

All details in the document must be clearly stated(Full name, date of birth, passport series, by whom and when issued, citizenship, residential address, all conditions for purchasing housing with accurate data), also prices, choice of apartment, conditions in case of issuing a power of attorney.

Additionally, you can reflect the apartment number, number of floors, cost (written in words).

The validity period of the consent (as well as the power of attorney) is presumably 1 year, but not more than 3 years from the date of issue.

When the buyers are a husband and wife at the same time, the apartment will belong to them equal shares, ½ part each. When purchasing an apartment in equal shares, the consent of the husband (wife) in the form of an application is not required, since both the husband and wife are present when the transaction is completed.

When one of the spouses is the buyer, and the other gives his permission for the purchase, 1 owner (the so-called title owner) will be indicated in the title document for the housing. However, this does not mean that he is the sole owner of the purchased property.

In this case, the acquired property will be common, and the husband and wife will have a share in the ownership of the housing, which is ½ part, as provided by law. This means that despite the fact that the contract for the sale and purchase of an apartment was drawn up, for example, in the name of the husband, the wife can rightfully claim half of the housing.

Carrying out the procedure and collecting documents

Drawed up on a special form with the required content:

• FULL NAME. the applicant;
• passport details;
• Marriage certificate;
• signatures on consent to the purchase and sale of an apartment;
• stamp indicating the registration number.

In addition to consent, it is possible to draw up a power of attorney for one of the spouses. Signatures affixed to documents are considered the basis for granting authority to the other half in the case of legal purchase and sale transactions.

The legislation does not provide for clear documentation. It is enough to correctly and without errors indicate all the details and indicate a list of actions that the representative will subsequently be given.

Indicate the period during which the documents will be valid (usually 12 months), as well as the possibility of reassignment, for example in the case of receiving a certified power of attorney when vesting one of the spouses with the rights indicated in the power of attorney, in this case to purchase an apartment.

Cost and terms

You can obtain consent to purchase a home, as well as a power of attorney for one of the spouses to act on his behalf for a period of time for 1 year. If you draw up an application yourself, it is enough to have it certified by a notary. The cost of the service will cost only 500-600 rubles.

Reasons for lack of consent

Most transactions are carried out only on the basis of an oral decision of one of the spouses. Although this is an erroneous state of affairs, it is still necessary to have the notary’s consent to the transaction.

The second spouse may not give it in the following cases:

1. Lack of information necessary when preparing documentation or completing a transaction.
2. Wrong documentation, in case of purchasing a home without the help of a competent realtor or lawyer.
3. Principal positions on the part of the buyer in case of disagreement, for example, with the requirements of the law.
4. Deliberately hiding information from a spouse, when the buyer retains the right to purchase housing in secret from one of the spouses, which means that a subsequent sale is possible without his participation.

Perhaps, when registering an apartment, there is no stamp in the passport about marriage registration and the fact of the existence of a marriage relationship is simply unknown to the registrars.

How to challenge a purchase and sale agreement?

The reason for terminating the challenge of the purchase and sale agreement may be precisely the fact that the notarized consent of 1 spouse to purchase housing was not previously drawn up. The spouse has the right to challenge a transaction carried out without his knowledge. 1 year is allotted for this from the moment he receives information about this fact.

The victim must provide irrefutable evidence in court that the transaction was carried out illegally and consent to the purchase was not given. Only under such conditions can a purchase and sale transaction be declared invalid.

To go to court, the victim must write statement of claim, provide evidence that his actions are legal and justified; common family money was spent on the purchase of housing without his knowledge.

When buying or selling an apartment, many different legal nuances often arise. The procedures for such transactions in reality are complex and often contradictory. In order to avoid rough edges, spouses are still recommended to notarize all their actions related to property, even if it was acquired long before marriage.

Today, many couples separate and the consequences may not turn out in their favor. A document drawn up in a timely manner will remain as such and will serve as a guarantor for the preservation of rights for one of the spouses in the future, in the event of divorce and subsequent division of property.

If one of the spouses buys an apartment, then you should know about some rules:

1. Complete all transactions With real estate you need a notary.
2. The fact of purchasing a home may be disputed if one of the spouses decided to purchase for selfish reasons or is simply not aware of the standards prescribed by law.
3. To challenge the transaction 1 year is given.

The notarized consent of the spouse for the purchase of real estate is required when the latter is acquired at the expense of Money, being common property spouses. This rule also applies to the sale of common real estate. Read more about this, as well as the rules for obtaining consent, in our article.

Notarized consent of the spouse for the sale of real estate

In accordance with paragraph 3 of Art. 35 of the Family Code of the Russian Federation (FC RF), in order to formalize a transaction with common real estate made by one of the spouses, the notarized consent of the second spouse for the sale of real estate is required. It should be noted that common property (property located in joint ownership) By general rule is property that was acquired during marriage.

Other rules may be established by the prenuptial agreement. For example, in accordance with it, property that was acquired jointly may be recognized as the personal property of the husband or wife, depending on in whose name such property is registered, etc.

As a general rule, the personal property of one of the spouses also includes (Clause 1, Article 36 of the RF IC):

• apartments, dachas and other property that belonged to him before the marriage;
• real estate and other property received by such a spouse as an inheritance, gift or through other gratuitous transactions.

The consent of the second spouse to dispose of such real estate is not required.

The consequences of disposing of jointly owned property without the notarial consent of the second spouse are enshrined in paragraph. 2 p. 3 art. 35 IC RF. A husband or wife whose consent has not been obtained has the right to judicial procedure recognize the transaction for the alienation of an apartment, house and other real estate as invalid within 1 year from the moment they learned about its registration (for example, the decision of the Industrial District Court of Perm dated July 31, 2017 in case No. 2-1721/2017).

Notarized consent of the spouse to purchase an apartment

All of the above is also true for purchasing an apartment or other real estate. Notarized consent of the spouse to purchase an apartment is required when it:

• purchased using joint funds;
• is issued in the name of one of the spouses.

Lack of consent in the above cases also makes the transaction voidable. The husband or wife, whose consent was not obtained, has the right to file claims for the invalidity of the transaction within 1 year from the moment they learned about such a transaction.

The notarized consent of the spouse for the purchase of an apartment is not required if:

• both spouses are buyers;
• a marriage contract has been drawn up, which contains conditions for the acquisition of real estate without the consent of the second spouse.

Rules for obtaining consent

To draw up a consent to purchase or alienate real estate you will need:

• original passport of the husband or wife - the one who gives consent;
• original marriage certificate.

In accordance with clause 25 of the Regulations for performing notarial acts, approved. by order of the Ministry of Justice dated August 30, 2017 No. 156, a notary can establish the existence of a marriage and from Unified register records civil status. More details about this normative act read the article “Regulations for the performance of notarial acts by notaries”. Currently, this service is available only to employees of the Federal Tax Service of the Russian Federation and civil registry offices; restrictions should be lifted from 10/01/2018. Before this time, you must submit the original marriage certificate.

It is also advisable to submit documents for the acquired or alienated real estate to the notary so that the notary can check the coincidence of the subject of the agreement for which the spouse’s consent is drawn up with the actual real estate.

The state fee for certification of consent is 500 rubles. (clause 6, part 1, article 333.24 Tax Code RF), however, in addition to this, notaries are required to charge a fee for the provision of legal and technical services (see letter of the Federal Notary Chamber dated November 20, 2017 No. 5083/03-16-3). Tariffs for such services are set by regional notary chambers. They can be viewed on the FNP website.

Validity period and other conditions of the notarial consent of the spouse for the purchase or alienation of real estate

The notarial consent of the spouse to the alienation of real estate or its acquisition is valid, as a rule, until the completion of the transaction for which it was given. The law does not limit its validity period. However, the validity period of the notarial consent of the spouse can be set by the husband or wife when it is issued. For example, consent can be given for 1 month, 1 year, etc.

In addition to the validity period, other conditions for the validity of the document may be established:

• a specific property that is subject to sale or acquisition;
• the price of such an object;
• the possibility of implementing the object in parts, etc.

Moreover, if consent is given to the sale of real estate on any terms and at any price, the execution of a purchase and sale agreement, for example, of a part of such an object, is recognized by the courts as competent (determination of the RF Armed Forces dated May 31, 2016 No. 18-KG16-33).

Form and content of notarial consent

The consent form for real estate transactions has not been approved, however, when drawing it up, notaries are guided by Form 2.1 “Certifying inscription for a unilateral transaction”, approved by Order of the Ministry of Justice of Russia dated December 27, 2016 No. 313.

The consent for the purchase or sale of real estate indicates:

• place and date of the notarial act;
• Full name, passport details, address of the husband or wife - the one who gives consent;
• marriage certificate details;
• data on real estate for the acquisition or disposal of which consent is given;
• consent itself;
• conditions for giving consent (if any), for example, the validity period of the document, transaction price, etc.;
• information that other conditions for the use of joint property are not established in the marriage contract;
• information that the individual giving consent is familiar with the provisions of Art. 34, 35 RF IC;
• signature of an individual;
• the notary's certification inscription, which contains his full name, the name of the notarial district, as well as information that the signatory's capacity has been verified, his identity has been established, and his consent corresponds to his will.

Cancellation of notarial consent of a spouse

Cancellation of a spouse's notarial consent is possible due to the fact that such consent is a unilateral transaction and can be canceled or changed. Cancellation (revocation of consent) must also be made in notarial form (Article 156, paragraph 1 of Article 452 Civil Code RF). The second spouse and the counterparty must be notified about it before the transaction is completed, the implementation of which was agreed upon (clause 57 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated June 23, 2015 No. 25).

The rules on revocation of acceptance are applied to the revocation of consent by analogy; therefore, a notice of revocation of consent to carry out a transaction, sent after such a transaction is completed, is considered invalid and cannot serve as a basis for declaring the transaction invalid (Clause 1, Article 6, Art. 439 Civil Code of the Russian Federation).

Thus, notarial consent for real estate transactions is required if the subject of the transaction is real estate jointly owned by husband and wife. This rule does not apply if the marriage contract establishes other conditions or the subject of the transaction is the personal property of one of the spouses. For example, real estate acquired before marriage or during marriage under gratuitous contracts.