If you want to sell your house for personal gain and it is joint-owned with your partner, the consent of both spouses is required. However, strange as it may seem, the consent or judicial authorisation of both spouses is also needed even if the main residence is owned only by one of you.
Salvador Salcedo, partner in the law firm Ático Jurídico, comments on a recent resolution of the General Directorate of Registries and Notaries (Dirección General de Registros y Notariado or DGRN) which establishes that article 1.320 of the Civil Code puts a limit on the freedom of the spouse who is the exclusive owner of the family home to sell or rent the property. This limitation comes from the fact that the legislation protects the family interests, considering them to be more important than the individual interests of either person in the marriage. This resolution only affects marriages certified in a civil or church context.
This legal precept aims to safeguard the family home from bad practices, such as the family member who owns the property deciding to sell up on the spur of the moment. The Supreme Court endorses this same position of defending the protection of family housing. However, it should be borne in mind that the article invoked will normally be applicable when there is no marital crisis situation, since otherwise it is usual for article 96 of the Civil Code concerning the use of the home in the event of separation or divorce to come into play.
"A part of the doctrine of the Supreme Court considers that at the heart of the rule is the principle of equality, which is projected both in the consensus for the choice of housing and in the control of both spouses for its preservation," Salcedo says.
That is why the Court insists that the consent to be given by the non-titled spouse constitutes a control measure to approve the sale of the property owned by the other spouse. "That is to say, the non-owning party tolerates or grants their approval to an act carried out by another to which they are not a party," explains the lawyer.
If no consent is given, the sale of the house could be annulled. But how? The notary must ask the seller if the property being transferred constitutes their habitual residence. If so, they will not authorise the signing of the transfer without the consent face-to-face or by power of attorney from the non-owner spouse. However, if the sale takes place without the consent of a notary, the land registrar will refuse to register the property in favour of the new owner.
Salcedo adds that, in view of the purpose of this legal requirement, not only will consent be required for the sale of a house, but also for free transfers, such as donation, or to dispose of the property in any other way.