Renting a flat without the consent of a co-owner or spouse - what do you need to know?

Renting a flat may seem like a straightforward process, but in the case of co-ownership, including a particular type such as matrimonial co-ownership, there are a number of legal issues that, when wishing to rent such a property alone, must be taken into account. In the following article, we explain when it is possible to rent out a flat or other premises without the consent of the co-owner. First, we describe the issues related to the lack of consent of the husband or wife. In the following section, we also analyse the exceptions to the main rules and point out which legal provisions regulate the consent of co-owners to rent a property.

What is matrimonial community of property?

In Poland, upon marriage there is automatically matrimonial propertyunless the spouses decide to conclude a property agreement (so-called prenup) which establishes property separation. The community of property includes all property acquired by both spouses during the marriage, unless otherwise stated in the property agreement.

Down personal property, separate regulations shall apply. Personal property of each spouse include, but are not limited to:

• items acquired before the marriage,
• items acquired by one spouse solely by inheritance, bequest or donation,
• non-transferable rights to which only one person is entitled,
• items used to meet the personal needs of only one of the spouses.

Renting a dwelling that is a jointly-held matrimonial property

In accordance with Article 37 § 1 Family and Guardianship Code (k.r.o.), the rental of a flat that is a joint property of the spouses requires the consent of both spouses. This means that one spouse cannot rent a flat without the consent of the other. The lack of this consent results in the so-called 'suspended ineffectiveness' of the legal action, which means that the agreement does not have full legal effect until the other spouse confirms it.

However, there are exceptions to this rule when it is possible for a husband or wife to rent a flat without the consent of the other spouse. Such a situation occurs, for example, when the flat belongs to the personal property of one of the spouses, for example, it was acquired before the marriage, by inheritance or by donation. There are also other exceptions.

Is it possible to rent a flat without my spouse's consent when running a business?

Where a spouse is in the business of renting premises and the rental of the premises is strictly related to that business, the situation may also be different from the accepted rule. If the flat or premises are used as part of one spouse's business, it is worth consulting a lawyer to assess whether the consent of the other spouse is required.

On the other hand, in some cases, the court may give consent in lieu of the spouse's consent and it is not very difficult to obtain such consent if the application is properly motivated. In such a situation, we recommend using the services of a court experienced in such matters law firm, ours or another with a similar profile.

Separation of matrimonial property and rental housing

If the spouses have concluded an agreement on property separation (the so-called prenup), each of them has the right to manage his or her property independently. In such a situation - still quite unusual in Poland - renting a flat, which belongs to the personal property of one of the spouses, does not require the consent of the other spouse. With separation, each spouse manages only his or her own property.

Spousal consent to rent - what form must it take?

The spouse's consent to the agreement should, as a general rule, be given in a form appropriate to the agreement.

The question of the consequences of a failure to comply with the written form, by giving consent in a format such as e-mail or text message, is quite a multi-threaded and multi-faceted question. Therefore, we invite you to consult our law firm on this matter and we will provide you with an answer based on a specific factual situation.

Can an email consent to a tenancy agreement be effective?

The answer to this question is highly dependent on the exact details of the case. A situation in which it is sufficient cannot be completely ruled out, but in the reality of the case it may well be that such consent is not effective.

Classic cases of joint ownership of a dwelling or premises (non-marital):

Renting a flat without the consent of a co-owner - what are the rules? How does renting other premises without the consent of co-owners work?

This again very much depends - first and foremost - on the number of shares in the property owned by the party planning to enter into the lease without the consent of the co-owner or co-owners. Secondly, on the previous use of such property and its nature. Thirdly, on the provisions of the lease agreement.
This is because we need to establish what proportion of the shares accrues to the person who performs the renting of the property and whether the act performed by him exceeds the scope of ordinary management.

What is ordinary management and what exceeds its scope?

Ordinary management refers to activities that are related to the day-to-day management of the property and do not change its legal or utilitarian status. Examples of ordinary management activities could be the collection of rent or minor repairs.

According to the most persuasive view of the legal doctrine, whether the lease of premises exceeds the scope of ordinary management must be considered casuistically, i.e. with strict reference to specific factual situations. This problem, and the determination of the rights of the parties, definitely requires a broader view of the scope of the co-owned property, the previous use of the property and the terms of such an agreement. For example, we will look a little differently at the situation of the lease of the largest field in the village, for 20 years, jointly owned by two people who have no value apart from it, and a little differently at the joint ownership of a commercial pavilion with five premises and the object of the lease is to be one of them. Again, we will look a little differently at a contract which is to concern the rental of a flat to a television crew for a period of 6 hours, and a little differently when the lease of the same flat for unknown reasons has been concluded in advance for 10 years.

What if the consent of the co-owner cannot be obtained?

If one of the co-owners does not agree to rent the premises (e.g. a flat), it is usually possible to apply to the court for the appropriate permission to do so or, for example, to appoint a manager. The court always makes its decision taking into account the interests of all co-owners. The court will usually give its consent if you convince it that renting the property does not harm the interests of the other co-owners.

Case law on leases without the consent of the spouse or co-owner

The courts have repeatedly addressed the issue of renting property without the consent of the spouse or co-owner. In a 2008 judgment (ref: III CSK 87/08), Supreme Court stated that a legal act performed without the required consent of the other spouse triggers the so-called state of suspended ineffectiveness. This means that the lease agreement binds the parties, but is incomplete - it only becomes fully effective once the consent of the other spouse has been obtained.

On the other hand, in a slightly different way, in a 2017 judgment (ref: II CSK 546/15), Supreme Court held that a lease of real property made by one co-owner without the consent of the other co-owners is only effective as a bond against the co-owner who made the lease. However, it has no effect vis-à-vis the co-owner who did not consent to the act, nor does it have any effect in rem.

Summary

Renting a flat or premises without the consent of a co-owner or spouse is possible, but requires knowledge of the relevant legislation and, in many cases, involves obtaining court approval. It is important, when establishing the facts, to thoroughly understand the differences between community of property, separation of property and fractional co-ownership, to be able to correctly recognise the situation and, if necessary, not to be afraid of the courts - which, after all, are there to help us.
Particularly where the failure to rent a flat or premises results in a loss or, conversely, a contract concluded without our involvement is disadvantageous.

We have described the subject as comprehensively as possible, but if you are a person aggrieved by such a situation, or if you have doubts about renting a property without the consent of the other spouse or co-owner, it is worth consulting the problem with our Law Firm or another with a similar profile. We handle cases nationwide and consultations are also possible online.