Land registry and family home protective rules
Land Registry and the family home protective rules
In the Portuguese legal system, the family home is protected according article 1682-A, n 2 of the Civil Code.
This article states that the disposal, the encumbrance, the rental or the establishment of other fruition real rights regarding the family home must be always authorized by both spouses
Other Overriding mandatory provisions in family law
Article 1707-A of the Civil Code: According to this article the surviving spouse, who renounces their status as heir, may remain in the house of family residence belonging to the deceased for 5 years as the holder of the real right of housing. If the surviving spouse has 65 years old on the date of the opening of succession, the real right of housing is perpetual.
Although partnership is not registered, there is a similar real right of housing for the surviving partner of the couple, in situation of de facto union (article 5 of Law n.º 7/2001 11/05)
Article 2103-A of the Civil Code: According to this article the surviving spouse has the right to be headed, at the time of sharing, in the housing right of the family home.
Practical case
Pietro had inherited a house from his parents’ succession. He is registered in the land book as sole owner. After that, he marries Sofía and they establish their family home at that house, where they live with their two little children.
Now, Pietro has received a very interesting offer for the house from an Investing company called Paradise Rooms SA, so he decides to sell it. Pietro and the representative director of the company have signed the purchase contract before the notary and have sent it to the Land Registry to register the new owner.
As previously stated, the family home is protected by Portuguese law (article 1682-A of the Civil Code). Even if the immovable is registered to a sole owner (namely because the matrimonial regime is separation of assets), the spouse has necessarily to sign the selling deed, in order to defend the family interests. So, in this case, unless “Pietro” declares to the notary that the house is not the family home, “Sofia” must sign de title.
The land registry checks if the seller complies the provision.
Besides the restriction regarding family home, in Portugal if the chosen regime is the joint community (which is the default regime, if no other has been chosen), the disposition of any immovable, even if inherited or acquired before marriage, has to be authorized by the other spouse. If not authorized the disposition can take place but it is voidable for a period of 3 years and, meanwhile, the registry of the acquisition is a provisional inscription.
The spouse which is the owner can also ask in court for the missing authorization for disposing, if the other spouse unjustifiably refuses to give consent.
