Why you should know Marital Status of the Seller while purchasing Immovable Property in Russia
Spouses in Russia have common ownership to any assets acquired by either of them while married (unless they have a marriage contract that provides otherwise). So, if spouse’s consent had not been received, a contract of sale can be challenged in court by the seller’s marital partner, is irrelevant of the fact if the buyer was a bona fide purchaser. This position has been upheld recently by the Supreme Court of the Russian Federation. Hence, one should always take into account the potential rights of the seller’s spouse while buying immovable property or shares in a company from an individual in Russia.
If The Seller Is An Officially Married Individual:
- The seller’s marital partner should provide a notarized consent on the approval of the sale and purchase agreement, else can be rescinded by a court.
- The notarized approval will not be necessary if the seller acquired the property by way of inheritance, or before marriage.
- If the seller and his/her spouse have a marriage contract that expressly provides that particular assets belong to the seller individually, an extract from such a contract can be provided to secure the buyer’s position.
- However, this document does not substitute a notarized approval of a particular transaction.
If The Seller Is Presumably Single:
- The buyer should take additional measures to check whether the seller might be actually concealing his/her marriage which will definitely strengthen the buyer’s position in the agreement.
- But if the contract is challenged by the official marital partner, this will not be an absolute remedy in court.
Documents should be obtained for an additional check:
- Certificate from the local Civil Registry Office (ZAGS) on the seller’s marital status shall be obtained though this will not be a 100% guarantee of absence of marriage.
But after 1 January 2018 with the introduction of a unified state registers for civil statuses this problem is expected to be solved as the register will include all information on the marital status of individuals (marriages registered abroad will also be included).
- Notarized statement of single state of the individual is required. This can be appropriately issued by the seller and certified by the notary public and have a statement by an individual on his/her single marital status to be presented to any interested third party.
The concept of ‘bona fide purchaser’ is worthless if no notarized consent of the spouse has been received, according to the Supreme Court of the Russian Federation.
- Representations and warranties in the sale and purchase agreement by the buyer and he should undertake to indemnify the seller against any possible damages resulting from rescission (annulment) of the agreement by a court under a claim of his/her marital partner.
- Magistrates and district courts provide information on pending proceedings and submitted claims on their official websites.
One needs to search among pending litigations for any disputes on separation of estate or divorce between the seller and his/her marital partner.
- Non-legal measures should also be kept in mind like a check of public information in social networks, private visits and consultations with the neighbours.