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How to buy half of the house from your husband or wife?

Family Law
How to buy half of the house from your husband or wife?

If you are considering buying half of your house from your partner, it is probably because you are going through a divorce.

This is usually the first issue to be addressed when you get divorced: who gets the house? It is a complicated decision, so it is essential that you take certain factors into account.

Important aspects when buying the house from your partner

Your financial situation

If you are married in community of property, you will know that 50% of your home belongs to your spouse, so in order to have full ownership of the home you will have to buy his or her share. For those who are married under a separation of property regime, which is normally stipulated in the marriage contracts, the ownership of the property does not necessarily have to be divided in ordinary pro indiviso, i.e. in equal parts; but you may own 70% of the house and your spouse 30%, so the proportion to be achieved is lower.

What is the value of the property?

It would be best if both spouses could agree on the value of the property, taking into account current market prices in their area. One way to check this is to consult real estate agents, who can tell you how much homes similar to yours are selling for, or go to real estate platforms and between the two of you make an approximation. In case of disagreement, the most appropriate course of action would be to engage an appraiser to provide a neutral valuation of the property.

What happens if there is a mortgage on the property?

If the property has a mortgage in force in the name of both of you, it is logical that if you are going to keep the whole property, your spouse will not want to appear as the mortgagor. In this case, you will have to go to your bank and ask for a novation of the mortgage loan. This process involves a series of expenses and also changes some details of the loan. In the case of a change of ownership, banks may normally be reluctant to carry out such a novation for security reasons or, if they do allow it, in view of the prospect of a single payer, they usually ask for the constitution of a guarantor.

Best ways to buy the property from your husband or wife

There are several ways in which you can buy a house, but which is the most convenient? In the following, I will tell you about the two most commonly used in practice:

Through a donation

This may be the first form of appropriation of the property that comes to mind, but it is the least advisable due to its high cost. You should consider that currently, in certain Autonomous Communities, only donations made between parents and children are subsidised at 99%, but between spouses there is no such subsidy. Therefore, you as the donee and acquirer will have to pay both Inheritance and Gift Tax (ISD) and Personal Income Tax (IRPF).

Through a sale and purchase

In these cases, the most common way is to buy the part corresponding to your spouse is by signing a contract of sale of the property before a Notary Public. This deed will state your name, the portion you are buying and the price for which you are acquiring it, and will be accompanied by a series of expenses that you must pay:

- Taxes: The sale and purchase is subject to VAT or ITP, depending on whether or not the property is second-hand, and AJD, as it is carried out before a Notary. You could not pay the latter if you do it in a private document, that is to say, only before a lawyer, but it is not the most advisable option for the following reasons: it cannot access the Land Registry, which implies that you are the only owner in front of third parties and this can cause you different problems and because it does not have the security and assistance that a public notary such as the Notary provides you with.

- Notary fees: these vary according to the price of the property and the Notary's fees, although they are usually similar everywhere.

- Registry fees: As we have explained above, the particularity of making the sale and purchase before a Notary is the access to the Land Registry to register the acquisition of the property and that you are the sole owner of the property. This cost will be calculated based on the value of the property and the fees of the Registrar.

- Valuation: In the event of having to go to a professional to appraise the property, this cost will have to be paid.

- Cancellation of the mortgage: If the bank has allowed the novation of the loan, it will be established in the deed of sale that, of the amount paid for the purchase of the property, a part of it will be used to cancel the part of the mortgage that corresponds to your spouse.

Apart from all the procedures described above, you will have to obtain a series of documents that must be attached to the deed of sale. If you wish to know them, do not hesitate to contact us.

Family Law

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