Sale of the family home
IN THIS week’s article we are going to deal with the case of a recent resolution dated January 31, 2022, of the General Directorate of Legal Security and Public Faith, in which a property registrar in Mallorca refused to register a deed of sale of a property owned by a person of British nationality married under the legal regime of separate estates, and two other unmarried co-owners who owned the rest of the property on a private basis. The property was sold but there was no record of the consent of the wife of the married owner and as such, the registrar refused to register the deed as although it was stated that the person was married under a property regime of separate estates, it was not stated whether the property was the family’s habitual residence or not nor whether, in accordance with the law governing the effects of their marriage, the spouse could freely dispose of the dwelling.
But how can we define the habitual residence? In the Spanish Civil Code, the expression ‘vivienda habitual’ is used to refer to the dwelling in which a person or his/her family lives (article 1.406-4.º). For tax purposes, it has a different concept and in principle is the property that constitutes the taxpayer's residence for a continuous period of at least three years. However, it will be understood that the home has been the habitual residence when, although this period has not elapsed, the taxpayer dies or there are other circumstances which necessarily require a change of address. For this purpose, it is important to point out what Spanish law establishes.
Article 1320 of the Spanish Civil Code establishes that in order to dispose of the rights over the habitual residence and the furniture of the family, even if such rights belong to only one of the spouses, the consent of both spouses or, where appropriate, judicial authorisation is required.
Additionally, article 96.3 of the Civil Code states that in order to dispose of all or part of the property and assets indicated whose use has been attributed to one of the spouses, the consent of both spouses or, failing this, judicial authorisation shall be required. This restriction on the power to dispose of the family dwelling shall be recorded in the land registry. Finally, another law states that the prohibitions to dispose or alienate shall be recorded in the land register except for those established by law.
In this case, it should be noted that when the British national bought the property, he was divorced and at the time of the sale he was married under the property regime of separate estates. It is clear that the British seller is subject to
British law as far as his matrimonial property regime is concerned. What may raise some doubts is whether the spouse's consent to the transfer by the owner of a property, in the case of the family home, is a rule relating to the matrimonial property regime or a rule relating to the owner's power of disposal of the property, i.e. a limitation of ownership.
Due to this, the appeal mentioned an English legal concept, which does not exist in Spanish law in the same manner, called ‘constructive trust’, which is not generally applicable to British marriages, but may be applicable in specific cases. It can arise in two ways: either through a written agreement of the spouses or through tacit or presumed acts that may eventually give rise to the right of one of the spouses to give his/her consent so that the other spouse can transfer his/her private property, if it constitutes the habitual family home.
In the case of married persons, the ownership of property in the register is affected by the legal regime or by agreement of the parties applicable to the property constituting the marriage, so that this regime influences the power of disposal that each spouse has in respect of the property forming part of the estate, whether it is the private property of one of them or the joint property of both.
In this case, the Directorate
General considered that it was not necessary to state whether the property constituted the habitual residence or not, as this was contrary to public policy, and therefore overturned the classification of the deed and allowed it to be registered.
However, the fact that initially the deed was not registered due to the registrar’s observation shows the importance of the nature of the property being clarified by the corresponding statement to avoid possible problems of registration of the deed of sale.