REALWorld Law

Sale and purchase

Consents

Are special consents required for certain transactions (for example, consent by a spouse)?

Angola

Angola

Yes. Depending on the transaction and the legal regime of marriage, consent from a spouse may be required.

Argentina

Argentina

Yes, the consent of the spouse is required if the real estate is a marital property or a family good (Bien de Familia). This consent is obtained when the document is executed. A minor can't sell its property.

Australia

Australia

Where leasehold property is sold, the consent of the relevant state or territory government minister to the transfer of the Crown lease must be obtained before completion.

Consent is required from registered mortgagees over the land, unless the mortgage is to be discharged at completion (which is the most common scenario).

Sellers must also ensure that they comply with any contractual rights they have given to third parties in relation to the land (for example pre-emptive rights or first rights of refusal) as part of any sale process.

Belgium

Belgium

Consent by a spouse may be required when the real estate includes property held by both spouses (ie common property) or if the transaction could affect the interests of the family (e.g. in the case of a sale at less than market value, the spouse could apply to the court on the basis of article 224 of the Civil Code to have the sale set aside). If the family home is being sold, which is owned by one spouse, then the other spouse will also have to agree to the sale.

Consent by public authorities who have certain rights (eg legal pre-emption rights) in respect to the real estate may also be required.

Also note that real estate projects may require authority consent, eg construction, renovation or execution of excavation works require a building permit (permis d’urbanisme / stedenbouwkundige vergunning).

Bosnia-Herzegovina

Bosnia-Herzegovina

No specific consents are normally required. However, if the seller is married, consent by the spouse is required if the property was acquired during the course of the marriage. In such cases, real estate is considered to be jointly owned and, if a dispute arises in relation to the transaction, the court may annul any contract which is not co-signed by the spouse.

Brazil

Brazil

In specific circumstances certain consents may be required, for example if the seller is a minor then approval by the court and/or the legal representative is required. Or if the owner is married, except if in the segregate asset regime, the seller’s spouse must be party to the sale, as an intervening consenting party or as the seller itself. The spouse’s consent is required in case of sale of property owned by the couple, except if the sellers are married under the regime of separation of property.

Canada

Canada

Consent is generally required from anyone who has lent money to the seller and has a security interest in the property being sold unless the mortgage is to be paid off in accordance with its terms at closing (which is, in fact, the most common scenario). Consent may be required from the landlord if the land is leasehold. The holders of any rights of first offer or first refusal affecting the property will have to waive or fail to exercise their rights. In addition, it is not uncommon that the sale or purchase of a property where one or more of the parties are a public company contains a condition that the transaction must first be approved by the company’s board of directors. Spousal consent is required in some provincial jurisdictions in connection with the sale of a matrimonial home.

China

China

If the relevant property is subject to a mortgage, the vendor should obtain the written consent for the sale from the mortgagee. If the relevant property is jointly owned, all owners who are registered in the property ownership certificate need to give consent before the transaction may take place.

Colombia

Colombia

In Colombia, special consent is required in the following situations:

  • Patrimonio de familia inembargable – This is a lien to protect assets belonging to the household. The effect of this encumbrance is that the property cannot be sold or made subject to liens or encumbrances.
    If a property is subject to this limitation, it must be removed before sale. To do so, it must be verified if there are minors in the seller's household. If so, authorization must be obtained from a judge or the Family Welfare Institute to cancel the registration of the lien.
  • Minors – Prior authorization from a judge is required to transfer real estate owned by a minor.
  • Companies – If the bylaws of a corporation indicate that the sale of real estate by a corporation requires the consent of its board of directors or shareholders, consent must be obtained before the execution of the deed.
Croatia

Croatia

Generally, special consents are not required by law unless these result from contractual obligations.

Czech Republic

Czech Republic

If the real estate is jointly owned by spouses, the consent of both is required for a transfer. The consent of the other spouse is also required in case that the real estate is owned by only one spouse, but the family household is located in the real estate.

Consents may be required by corporate statutes.

Denmark

Denmark

Generally, consents are not required, however, it may be necessary in special circumstances, eg a private individuals’ sale of a residential property used as the family residence may not be perfected without consent from the spouse.

France

France

In addition to specific consents linked to the legal capacity of the seller (for example, in the case of minors or the mentally disabled), the consent of a spouse is required for the sale of a residential property that is the marital home. No other specific consents are required.

Germany

Germany

In specific circumstances certain consents may be required, for example if the seller is a minor then approval by the court is required or, if the sale comprises the sale of a substantial part of the seller's assets (ie 85-90% of the assets), or under certain matrimonial property regimes, the consent of a spouse may be required. There are also consent requirements under public law, eg in areas designated for redevelopment.

Hong Kong, SAR

Hong Kong, SAR

Consent is required from anyone who has lent money to the vendor and has a security interest in the property being sold unless the mortgage is to be paid off at completion (which is, in fact, the most common situation).

In the case of residential property, the purchaser generally also needs consent from any other occupiers with a proprietary interest and confirmation that they will move out. If the property is sold subject to a tenancy, the parties may wish to enter into a 'novation' agreement to transfer the existing tenancy agreement to the new owner.

In the case of property development, consent from the government is required if the developer wishes to sell the flats whilst they are in course of construction in order to finance the project.

Hungary

Hungary

The consent of a spouse must be obtained if the sale is of jointly owned assets.

Certain pre-emption rights also effectively mean that specific consents are required. The Hungarian State has a pre-emption right over protected historical or cultural heritage buildings and buildings located in specifically designated areas having cultural or historical importance or national parks etc. Current occupiers, neighbouring landowners and the Hungarian State (in that order) have pre-emption rights over arable land. When one co-owner of a jointly owned property wishes to sell, the other co-owners have pre-emption rights.

Also, non-EEA citizens or legal entities must also obtain specific permission from the competent authority before acquiring property in Hungary.

Ireland

Ireland

If the property is a family home and held in the name of one spouse or civil partner, prior written consent from the other spouse or civil partner is required on the sale contract.

If the transaction constitutes a disposal of land by a state body then statutory consent will be required in accordance with certain statutory provisions.

Consent is required from any lender who has a security interest in the property being sold unless the mortgage is to be paid off at completion (which is the most common scenario).

Consent may be required from other parties such as the landlord if the land is leasehold, or a management company where the property is part of a business estate.

Italy

Italy

In specific circumstances certain consents may be required. If the seller is a minor the approval of the court may be necessary. If the sale concerns a property which belongs to a married couple, the consent of both spouses is required.

Japan

Japan

When purchasing agricultural lands, the purchaser must obtain the consent of the local government's agricultural committee.  In the case of purchasing jointly-owned property, the purchaser must obtain consent from all of the joint-owners.

Netherlands

Netherlands

A spouse must give consent in writing for the sale of the marital home.

In addition, depending on the articles of association of a company, the management board of a B.V. (the Dutch equivalent of a private limited company) or an N.V. (the Dutch equivalent of a public limited company) may need the permission of the supervisory board for certain transactions.

Also, permission may be required with respect to some specific categories of real estate, such as hospitals and school buildings.

New Zealand

New Zealand

Most common consent requirements include:

  • Mortgagee consent – where a mortgage is registered against the title, the bank will need to provide a discharge of that mortgage on settlement.
  • Overseas Investment Office (OIO) consent – OIO consent is needed for any "overseas person" buying "sensitive land" (see Ownership Restriction section).
  • Lessor consent – Where a leasehold interest is being acquired, the consent of the owner of the freehold title may be required. A lease of longer than 35 years of part of an "allotment" is a subdivision and a resource consent from the territorial authority will be needed.
  • Third-party contractual rights – Sellers should ensure they comply with any contractual rights they have given to third parties (eg rights of first refusal or options to purchase) as part of the sale process.

Consent by a spouse is not necessary in New Zealand if the seller owns the land in their sole name. However it would be prudent to consult their lawyer about any relationship property issues that could arise. Other consents are needed in certain cases, but are less common:

  • Caveator or claimant consent
  • Statutory land charges, charging orders and other consents
  • Company share apartments and units: This is where a company owns the property and grants a license to occupy a unit/apartment on the land to a shareholder of the company. The seller will need the consent of the company to the sale of its shares in the company to the purchaser, and the surrender its license and to grant a new licence to the buyer.
Nigeria

Nigeria

In Nigeria, the Land Use Act provides that the consent of the Governor is required for any alienation or transfer of interest in real property. In practice, it is after completion of the transfer that consent is processed together with the registration of the deed of transfer.

The consent of a partner, joint or co-owner of the interests in real property must be sought for there to be a valid transfer of the title by a seller. A spouse who is a co-owner on the records of title in real property must give consent for any sale to be valid, otherwise spousal consent is not required.

Where the property is owned by a company, the resolution of the members or the directors of the company is necessary for the sale of the interests in the property. Furthermore, the newly passed Companies and Allied Matters Act 2020 provides that a major asset transaction must be approved by members of the Company at a general meeting. A transaction is a major asset transaction where it involves a purchase or sale or other transfer outside the usual course of the company’s business of the company’s property or other rights the value of which, on the date of the company’s decision to complete the transaction, is 50% or more of the book value of the company’s assets based on the company’s most recently compiled balance sheet.

A liquidator duly appointed for a company in liquidation, must give consent to any sale.

All named executors or administrators of an estate of a deceased and upon grant of letters of probate by the High Court must give consent for the transfer transaction to be valid.

Generally, where alienation of the interests in property is subject to the consent of the overlord or head-lessor with the right of reversion, any alienation of the interests or any portion of same must be with the consent as agreed in the agreement for the property.

Norway

Norway

An individual cannot transfer the title, mortgage or lease of their common home without the approval of their spouse or registered partner.

Poland

Poland

If real estate is jointly owned by a married couple, the consent of both spouses is required for the sale, otherwise the SPA will be void.

The sale of real estate by a company requires the consent of its shareholders granted in the form of a resolution.

The consent of the relevant authority may be required for the sale of certain property, for example, for the sale of a monument appearing in the register of monuments consent from the relevant Conservator of Monuments is required.

Permission is required for selling real estate to foreigners.

Portugal

Portugal

Yes. Civil law requires special specific consents for certain transactions, such as the consent by a spouse (depending of marital agreements), by the legal representatives of a minor, by co-owners of real estate and by individuals or entities with pre-emption rights.

Romania

Romania

A spouse cannot dispose of any real estate property which is in joint ownership with his or her partner without the express written consent of the other spouse.

For companies, there are specific requirements for corporate approvals for the sale and purchase of real estate, depending on the value of the transaction. Should the transfer value of the property exceed a specific threshold (50 percent of the book value of their total assets for private companies and more than 10 percent of their net assets or their turnover, for public companies), the transaction must be approved by the shareholders.

Slovak Republic

Slovak Republic

Yes, where a husband and wife jointly own a property in undivided shares (bezpodielové spoluvlastníctvo manželov) the transaction requires the consent of both co-owners (spouses), otherwise the agreement is invalid.

Additional requirements may apply in the case of a purchase from a municipality or state authority or in the case of a purchase of a culturally protected real estate.

Spain

Spain

Under Spanish law, a contract is not valid unless all parties have consented. In some cases special consents are needed, for example, when one party is a minor or does not have legal capacity the consent of the parent or guardian is required.

In the case of a married couple, even if the property is the family home and belongs to one spouse privately, the consent of both is required.

Sweden

Sweden

Yes, the seller's spouse must consent to the sale if the real estate in question is the spouse's normal residence or is marital property.

It should also be noted that a co-operative building society may have a right of pre-emption over certain real estate. A tenant of land may also have a right of pre-emption if the tenancy is in the form of a residential ground lease or certain types of agricultural ground lease.

Thailand

Thailand

Yes. In addition to specific consents required due to the legal capacity of the seller and the buyer (for example, in the case of minors or the mentally disabled), if the seller has a spouse, the seller must have a written consent from his/her spouse before the transferring any type of land or real estate.

United Arab Emirates - Abu Dhabi

United Arab Emirates - Abu Dhabi

Consent may be required from anyone who has lent money to the seller and has a security interest in the property being sold (unless the mortgage is to be paid off at completion) and from any other occupiers (together with confirmation that they will move out). Consents are also required from any party with a superior interest.

In the Abu Dhabi Global Market free zone, where the consent of a person is necessary for any dealing with real property, the consent must be written on the relevant instrument, or be lodged with the relevant instrument.

United Arab Emirates - Dubai

United Arab Emirates - Dubai

The consent of a mortgagee will be required where the property being sold is being given a security for a mortgage. Equally, the consent of any person with a superior interest in the same property will be required in order for an inferior interest to be registered (eg the consent of an owner to the registration of a usufruct holder registering their interest).

Land which has been 'granted' by the Ruler of Dubai to a national of the United Arab Emirates usually has certain conditions attached to the grant, and the consent of the Private Office of the Ruler may be required to a transfer.

Any family dispute arising from a transfer of property is likely to be dealt with by the Shari'ah Courts in Dubai, however, there is no specific consent required from a spouse to a transfer where that property is registered in the name of the other spouse.

UK - England and Wales UK - England and Wales

UK - England and Wales

Consent is required from anyone who has lent money to the seller and has a security interest in the property being sold unless the mortgage is to be paid off at completion (which is the most common scenario).

Consent may be required from other parties such as the landlord if the land is leasehold, or a management company where the property is part of a business estate.

In the case of residential property, the buyer generally also needs consent from any other occupiers and confirmation that they will move out.

Restrictions may also be placed on the registered title to a property with the agreement of the owner, preventing a disposition being registered without the consent of another specified party.

UK - Scotland

UK - Scotland

Consent is required from any bank or financial institution that has a charge over the property and it is a standard condition of any sale that debts relating to the property are repaid and the charge released at completion.

In the case of residential properties, the seller must obtain the consent of a spouse/civil partner of any occupier of the property if they are using that property as the matrimonial/family residence.

Ukraine

Ukraine

Where a single property is jointly owned, for example by a husband and wife, written and notarized consent from all the co-owners is required for every material transaction in Ukraine (eg sale and purchase of real estate, real estate leases). In addition, the co-owners can choose to empower one of them to make decisions about the jointly owned property. Ukrainian law also requires the permission of the guardianship authorities for the sale of real estate owned by someone under the age of 18.

United States

United States

Consent is required from anyone who has lent money to the seller and has a security interest in the property being sold unless the mortgage is to be paid off in accordance with its terms at closing (which is, in fact, the most common scenario). Consent may be required from the landlord if the land is leasehold. The holders of any rights of first offer or first refusal affecting the property will have to waive or fail to exercise their rights. State law will mandate whether any special consents are required from occupiers of residential property. Spousal consent is required for a transfer of property if the spouse’s name is listed on the deed. Depending on a jurisdiction’s estates laws, spouses may have consent rights over sales of property even if the spouse is not listed in the deed. Additionally, consent/authority is typically required under the seller’s authority documents and title companies will require evidence of such consent/authority before issuing title insurance to the buyer.

Zimbabwe

Zimbabwe

Where a property is co-owned, the seller needs to have the consent of his/her partner before selling a property.

Where couples are married in community of property, consent would need to be sought from the other spouse.

Where the owner of the property is a minor, the minor’s legal guardian must approach the court on behalf of the minor for the appointment of a curator for a disposal of the property. The curator must then consent to the sale on behalf of the minor.

All corporate entities require a resolution or consent from its members to sell a property.

Where the property forms part of a deceased estate, the Master of the High Court must consent to the sale. The executor appointed is responsible to apply to the Master.

Where the property forms part of liquidation proceedings, the trustee of the insolvent estate must approach the Master to obtain his consent.

Where the property is subject to a mortgage bond, the bond holder’s consent is required for a sale transaction.

In the event that a purchaser or seller requires someone to act on their behalf and attend to the transfer of a property for him/her, a Special Power of Attorney must be prepared, consenting to the appointed person acting on his/her behalf. Details must be fully set out, stating the particulars of the appointed responsible person as well as the full details of the property in which all acts will be performed. The Special Power of Attorney must be signed by the person who requires the Special Power of Attorney and must be notarized by a notary public.