Renting a premises or apartment - jointly owned by the spouses

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Piotr Kłodziński|
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There are two basic ones that should be indicated in our national legislation matrimonial property regimes:
marital property, i.e. the so-called marital property and separation of marital property (often imprecisely called a prenup).

  1. Marital property (i.e. marital property):
    • It arises automatically exactly at the moment of marriage.
    • As a rule, it covers property acquired during the marriage by both spouses or by one of them (joint property).
    • In turn, all property items not covered by statutory community property belong to the personal property of each spouse.
    • The principle applies that spouses may dispose in an unlimited manner only of that part of the joint property for which there is no obligation to obtain the consent of the other spouse.
    • Renting a residential premises that is the joint property of the spouses, cannot be made by one of the spouses without the required consent of the other spouse, in accordance with Art. 37 § 4 of the Family and Guardianship Code (kro).
  2. Separation of marital property:
    • It is a contractual property regime that may be chosen by the spouses in the marriage contract.
    • In this case, each spouse has separate property.
    • Marital separation is not automatic and must be clearly defined in the marriage contract.

Is it possible to rent an apartment belonging to spouses without the consent of one of them? Can one spouse rent a marital property? 

In a very common situation of renting a residential premises which is the joint property of the spouses, one of the spouses cannot rent without the required consent of the other spouse, in accordance with the provisions on marital property. However, it is worth remembering that in the case of separation of marital property or in the case of personal property and in the case of running a business, the rules may be different, so it is always worth consulting legal advisor specializing in lease issues.

Is it possible to obtain your spouse's consent to rent an apartment against his or her will? 
Of course, it's usually possible. However, this will take some time. Sometimes it is easier to try to convince such a spouse with the help of a lawyer and get him to cooperate, but sometimes you need to obtain such consent with the help of the court. However, no one is in favor of the spouses' property interests suffering as a result of their disputes.

Is a premises lease agreement concluded without the consent of the other spouse valid? 
The answer to this question was given by the Supreme Court in its judgment of 2008 in the case no. file: III CSK 87/08, confirming that: "A legal act performed without the required consent of the other spouse is an incomplete legal act and results in the so-called state of suspended ineffectiveness. During its duration, the parties are bound by the contract, but it is assessed as to its validity only after its confirmation by the other spouse or refusal of such acceptance. This means that such a lease agreement concluded by only one spouse is binding on the parties, but may ultimately be invalidated.

Instead of agreeing to rent the premises, can the second spouse simply be the second lessor indicated in the contract?
Yes, the practical approach prevails here - if the lease agreement indicates two lessors and they are both spouses who have signed the agreement, then, in our opinion, the requirement to grant consent is obviously met.

Can a husband rent a place to his wife?
It depends on the spouse's estate and what marital property agreements they have concluded. Finally, it is also important what entity is to use the premises - whether the wife runs a JDG or a company, etc.

Can one of the spouses rent an apartment?
It depends on which side he is on, how big the contract is and what he does professionally. But if we are talking about the most common, typical case - when the landlord is one spouse and the consent of the other spouse is lacking - then the answer is unfortunately no. At least not that simple.

Does this mean that the lease agreement should always be signed by both spouses when they are the lessor?
It's not that simple again, the apartment may belong to personal property, or one of the spouses may receive a power of attorney from the other. Finally, consent may be expressed in another document.

Can the spouse's consent to renting an apartment be expressed by e-mail? 

A very nice question, we need to think about this issue carefully and discuss it in... Chancellery – and we'll let you know 🙂

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