Answering your questions about renting premises without the consent of a co-owner:
First, let's analyze the issue of renting an apartment or premises without your spouse's consent.
Two basic ones should be distinguished matrimonial property regimes:
marital property, i.e. the so-called marital property and separation of marital property (often imprecisely called a prenup).
- 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.
- The general rule is that 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). But there are exceptions to this rule, as described below.
- 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 this rule has many exceptions. In the case of separation of marital property or in the case of personal property (i.e. if the apartment was acquired, e.g. by inheritance or gift) and in the case of running a business, the rules may be different. Therefore, if the situation raises doubts, 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 is usually possible to obtain court approval for such an action. However, this will require some effort and, above all, the passage of time. It is usually much easier, with the help of a lawyer, to try to convince such a spouse and persuade them to cooperate harmoniously. Only if it turns out (which almost never happens in practice, we convince even the most reluctant ones) that even the lawyer was unable to negotiate this issue with the spouse, then such consent must be obtained with the help of the court. There are traditional, slow and quite fast legal paths for this purpose.
Usually, marital conflicts involve a lot of emotions, so it is best when a third party is involved in such a negotiation process between spouses. Because ultimately, neither spouse is in favor of the property interests of both of them suffering greatly as a result of disputes. Even if sometimes one of the parties thinks otherwise, people can usually be convinced to stop wasting money despite their emotions.
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. Act: 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 with one move. However, if the parties are bound by the contract, the rent must be paid and the premises should be made available until a possible negative decision of one of the spouses.
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 - regardless of whether the lease agreement indicates one or two lessors and whether both spouses are listed in the header. If both spouses have signed the contract, then in our opinion the requirement for consent is obviously met.
Can a husband rent a place to his wife? Or can a wife rent commercial premises to her husband?
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 sole proprietorship, a partnership, a capital company, etc.
Can only one spouse 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. Although concluding such an agreement is, on the one hand, incomplete, on the other hand, it may lead to a situation in which the tenant's interest will not be left unprotected. The protection provided by tenancy law protects tenants quite decently.
Does this mean that the lease agreement should always be signed by both spouses? In cases where the owner of the apartment is someone who is married?
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 this issue through and discuss it Chancellery – and we'll let you know 🙂
If you have any further doubts, please visit us consultation.