Cancellation and Re-Registration of Title for Simulation
Where the parties’ true intent differs from the transaction they declared at the land registry, the apparent transaction and the concealed transaction are assessed separately. A gift presented as a sale, a transfer made without consideration or not actually carried out, or a transaction alleged to aim at removing assets from third parties does not by itself produce the consequence of simulation; the true and common intent of the parties must be established with concrete evidence.
In this context:
- Transactions alleged to be a sale in appearance but a gift in reality
- Transfers alleged to lack a genuine intent to sell
- Examining whether the transfer price was paid
- Assessing the economic situation of the parties and the actual use of the property
- Connected transfers carried out at short intervals
- The parties to the simulated transaction and the position of persons who later acquired the property
Simulation by the deceased, based on the allegation of removing assets from the person leaving the estate, has different party and proof characteristics from general simulation and is therefore assessed separately.
Simulation by the Deceased and Allegations of Removing Assets from the Estate
The allegation that the deceased, wishing in reality to give a property away, presented it at the land registry as a sale or as a contract of maintenance until death in order to remove assets from the heirs may arise as a case of simulation by the deceased. The true purpose of the deceased is assessed through family relationships, the need for care, the need to sell, whether the price was paid, the economic strength of the parties, the use of the property and all circumstances of the case.
In this context:
- Transfers alleged to aim at removing assets from the heirs
- Examining the relationship between the sale price and the real value
- Assessing the deceased’s reasonable grounds for selling or transferring
- Care relationships and contracts of maintenance until death
- Determining heir status, the estate and the composition of the parties
- Assessing the relationship with claims for reserved portion, abatement and equalization
For simulation by the deceased, abatement and other disputes concerning the partition of an estate, see the Inheritance Law page.
Title Cases Arising from Gift and Maintenance-Until-Death Relationships
In files where a property was transferred under a gift or a contract of maintenance until death, the validity of the contract, the true intent of the parties, formal requirements, whether the duty of care was performed, and the conditions for withdrawing from or terminating the contract are assessed together.
In this context:
- Validity of the gift and claims to revoke a gift
- Disputes arising from gifts with a burden or a condition
- Validity of the contract of maintenance until death
- Allegations that the duty of care was not performed
- Termination of the contract and claims for cancellation and re-registration of title
- Assessing the relationship with allegations of simulation and simulation by the deceased
- Options for value and compensation if the land registry record cannot be corrected
Transfers Made Without the Spouse’s Consent in Respect of the Family Residence
Where a property used as the family residence is transferred, or a limited right in rem is created over it, without the explicit consent of the spouse who is not the owner, the matter may give rise to a claim for rectification of the land registry record under the conditions specific to family law. The character of the property as the family residence, the marriage and use, the consent, the land registry record and the legal position of the third party are examined together.
In this context:
- Entering a family residence annotation
- Sales and transfers carried out without the spouse’s explicit consent
- Creating a mortgage or other right over the family residence
- Proving that the property is a family residence
- Assessing the third party’s claim of good faith
- Claims to be heard by the family court and connected measures
For protective remedies concerning the family residence and the spouses’ assets, see the Family Law and Division of Marital Property pages.
Separate the Inheritance Claim from the Family Residence Claim
In simulation by the deceased, the apparent transaction and the true purpose of the deceased are examined; in the family residence, the actual family life on the date of the transfer, the marriage and the conditions of explicit consent. Not every transfer within the family is simulated; nor is every home a family residence.
Is a price difference enough on its own?
The difference between the transfer price and the value is assessed together with the other evidence. The care relationship, the need to sell, the buyer’s ability to pay, bank records and the use of the property matter. A claim for registration concerning an inheritance share and abatement aimed at protecting the reserved portion are not the same claim.