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Autore ArgomentoHow to prevent the sale or foreclosure of the marital home that is assigned to you
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Posts: 38
Post How to prevent the sale or foreclosure of the marital home that is assigned to you
il: 3 April 2012

Many of my readers are in a situation where he was awarded the marital home but this is not owned by them or their is only partially. This is why we ask:

"The marital home given me, may be sold or foreclosed by the spouse or co-owner exclusive even if the judge ruled, during the separation (or divorce), I can live with their children?

First we make a distinction between sale and foreclosure.

The sale of the marital home awarded

First, the Supreme Court has stated that "the decision to award the marital home is opposable to third party purchaser at a later date for nine years from the grant date or over nine years if the title is written" (Cass. SU 26.7.2002 n. 11096; Cass., Sez. I, 22.11.2007 n. 24321).

This means that if your spouse or co-owner the exclusive owner of the marital home sells you:

1) Even if you have transcribed the decision of Judge, not run risks for nine years: In fact, the buyer, must respect the decision of the judge assignment throughout this period. Can not therefore take possession of the house for nine years, even if he bought it regularly.

2) If you write down the order of allocation of the marital home at the Land Registry property, as if it were a public deed of sale deed executed before a notary, then it will not run risks long as you live in the house with children, ie as long as they will not be independent.

In practice, it creates a bond of destination in the interest of the children for the person who buys the house after the transcription of the measure must respect.

Understood the convenience of transcription? Some, coast, but the advantage is huge.

The attachment of the marital home awarded

Here we look at art. 2812 c.c. whereby if there is a mortgage prior to transcription of the measure of assignment then the mortgage lender can seize the house and sell. In this case, the right of use of the marital home is extinguished.

Then, according to this Article., we have two situations:

a) The decision to award the marital home is next to the mortgage.

In this case it is useless for you to transcribe the measure, because creditors can expropriate been nine years from, even if the transcribe. In this case, the right to housing is extinguished and can only be entitled to a portion of the proceeds but only after the creditor has taken his share.

b) There is a measure for the allotment but there is still a mortgage.

In the latter case, you have two options: transcribe the decision to award or not. In the first case the creditors must comply with the order of assignment until it is revoked. The second will be free to foreclose on home.

However, the Supreme Court opinion that the difference is transcribed or not the measure before the seizure and not the mortgage, whereby:

1) If you do not write down the order of allocation of the marital home before the foreclosure then the creditors will be pawn and then sell it after a period of nine years from the date of grant.

2) If you write down the measure before the foreclosure then you can feel comfortable because you can continue to live in the marital home until their children will not be economically independent.

This solution is supported by the Supreme Court with Article. 6 comma 6 the divorce law, which is also applicable to the separation. In fact, this' art. refers to art. 1599 c.c. which refers however tenant equating in this way to the assignee of the house conjugal. (Cass. 26 July 2002 n. 11096; Cass. 2 April 2003 n. 5067; CasCass9 August 2003 nn 12705).

However it is a bit isolated reading of the Supreme Court, that in the course of proceedings, the judge may not accept. I recommend, therefore, to rely more on what the article says. 2812 c.c., To reduce the risk!

Ospite

Posts: 25
Post Re: How to prevent the sale or foreclosure of the marital home that is assigned to you
il: 22 March 2013

Salve, Some Lawyers, on the subject tell me that it is not a judgment on the unified sections of Cassation term of nine years is always at the discretion of the judge and then the former spouse clear set children can stay until the economic independence of the latter.

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