Purchase of apartment share as separate property: what the Registry requires in 2026

Key data

If you own one-third undivided share of an apartment as separate property and purchase another one-third share from the other co-owner, can you request that it also be registered as separate property? The answer from the Property Registry of Burgos No. 2, confirmed by the General Directorate of Legal Security and Public Faith (DGSJFP) in its Resolution of April 22, 2026, is clear: analogy with the right of first refusal of co-owners and the principle of share splitting are not sufficient. Separate property status must be proven.

This resolution has direct implications for any real estate transaction in which a spouse in community of property regime acquires shares of a property of which they are already a private co-owner.

What does this resolution establish?

The case resolved by the DGSJFP stems from a deed of sale in which the buyer, already the private owner of one-third undivided share of a property, acquired another one-third undivided share of the same property. The buyer was married under community of property regime and sought to have the new share registered as separate property.

To justify this, two main arguments were presented:

• Analogy with the right of first refusal of co-owners (art. 1522 of the Civil Code): the legal right of first refusal allows the co-owner to step into the position of the external buyer. The notary argued that direct acquisition between co-owners should receive the same treatment.
• Rule 4 of art. 1346 CC: property acquired with separate funds is separate property. The principle of share splitting and the purpose of terminating the co-ownership were also invoked.

The registrar rejected registration as separate property and the substitute qualification confirmed that denial. The DGSJFP resolved the appeal by precisely delimiting what is needed to register an acquisition as separate property when the buyer is married under community of property:

The resolution makes clear that direct acquisition between co-owners, although it has a practical purpose similar to the right of first refusal (terminating co-ownership or consolidating ownership), does not enjoy the same registry treatment as the legal right of first refusal.

Economic and operational impact

The impact of this resolution is fundamentally operational and may have relevant patrimonial consequences:

• Risk of incorrect registration: If the share is registered as community property when the buyer intended it to be separate property, the property becomes integrated into the community of property, with the consequences this has in case of divorce, inheritance, or execution of debts of the spouse.
• Additional notarial costs: Correcting an incorrect registration or completing the required documentation (statement of facts, confession deed, attribution transaction) generates notarial and registry expenses that could have been avoided with prior planning.
• Paralysis of the transaction: The registry denial blocks registration until documents proving the separate origin of funds are provided. This can delay chained transactions (mortgages, subsequent sales).
• Tax implications: The classification of the property as community or separate can affect taxation in personal income tax (income allocation, capital gains) and Inheritance and Gift Tax.

Who does it affect?

• Spouses married under community of property regime who acquire shares of properties of which they are already private co-owners.
• Spouses in community of property who purchase any real estate with funds of separate origin and want this to be recorded in the Registry.
• Notaries who authorize deeds of sale in which the acquirer is married under community of property regime and seeks separate property status for the acquisition.
• Property registrars who qualify transactions of this type.
• Lawyers and advisors who plan real estate transactions for clients married under community of property regime.
• Families with co-ownership of properties in which one of the co-owners is married under community of property regime.

Practical example

Let us suppose the case resolved in the resolution: three siblings are owners in undivided shares of an apartment, each with one-third undivided share. One of them, married under community of property regime, acquired their one-third share before marriage (separate property). Now they want to purchase the one-third share of one of their siblings to consolidate their position in the property.

The buyer argues before the notary that, just as would occur with the right of first refusal of co-owners, their new share should be separate property because they already had a separate share in the same property. However, according to the DGSJFP resolution:

• Direct sale between co-owners does not equate to the legal right of first refusal of art. 1522 CC.
• For the new one-third share to be registered as separate property, the buyer must prove that the price was paid with separate funds through public document (for example, a bank statement elevated to public deed, or a prior deed of donation of the money).
• Alternatively, the non-buying spouse can confess the separate property status in the deed itself or in a subsequent document.
• Or an attribution transaction of separate property status with express cause can be formalized.

Without any of these three methods, the Registry will register the new one-third share as community property, with all the patrimonial consequences this implies.

What should affected parties do now?

1. Before signing the deed: Identify whether the buyer is married under community of property regime and whether they intend the acquisition to be separate property. Do not assume this: ask explicitly.
2. Prove the origin of funds: If the price is paid with separate money (inheritance, donation, sale of previous separate property), gather the public documentation that proves this before signing. A bank statement is not sufficient: it must be recorded in a public document.
3. Consider confession of separate property status: If there is no documentation of the origin of funds, the non-buying spouse can confess the separate property status in the deed itself. Seek advice on the implications of this declaration.
4. Consider the attribution transaction: In complex transactions, an attribution transaction of separate property status with express cause is the most solid and least questionable method from a registry perspective.
5. Do not invoke analogy with the right of first refusal: The DGSJFP resolution expressly closes this avenue. Using it as the sole argument guarantees registry denial.
6. Review pending transactions: If you have signed but not yet registered deeds in which analogy with the right of first refusal was invoked to justify separate property status, consult with a notary or registrar before presenting them.

Official source

Consult complete regulation in official source

Notice: This article is for informational purposes only and does not constitute legal advice. For specific decisions, consult a qualified professional. Source: https://www.boe.es/diario_boe/txt.php?id=BOE-A-2026-16221