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Buying or selling real estate in Bulgaria — whether it is an apartment in Sofia, a house in Stara Zagora or a plot in Burgas — requires not only good judgment and financial preparation, but also legal certainty. At first glance, the procedure may seem familiar: inspection, contract, notary. In reality, however, each stage carries specific risks, from legal burdens and hidden mortgages to invalid powers of attorney and pending litigation. It is here that the professional assistance of a property lawyer plays a key role.
According to Art. 18, para. 1 of the Law on Obligations and Contracts, contracts by which ownership of real estate is transferred must be concluded by a notarial deed. This requirement of form is not a formality — it ensures verification of the identity of the parties, the status of the property and binds the transaction to legal effect. But before reaching the notary, a good real estate lawyer in Sofia or Burgas will carry out a check in the Property Register, analyze the tax assessment, review the cadastral sketches, check for registered foreclosures or encumbrances, and prepare a draft preliminary contract according to Art. 19, para. 1 ZD.
The topics that we will consider in detail in this guide include: what are the types of real estate transactions and their legal features, what are the types of lawyer's services and fees when buying or selling a property, what are the procedures and documents that need to be prepared, as well as what are the most common mistakes and “pitfalls”. Particular attention will be paid to the differences in acquisition through public sale, including through a private bailiff (CSI), as well as in the participation of foreigners in real estate transactions.
The BSLC team — Black Sea Law Counsel — brings together experienced real estate lawyers and lawyers with many years of experience in the field of real estate. We advise clients from all over Bulgaria and the EU on sales, donations, divisions, transactions with mortgaged properties, legal regime of agricultural land and registration procedures. Our approach is completely customer-oriented — with clear prices, efficient communication and full legal certainty. 🏡⚖️
What must be considered when buying or selling property in Bulgaria?
A real estate transaction is one of the most significant financial and personal decisions an individual or company can make. This applies equally to Bulgarian nationals and foreign buyers. The approach must therefore be guided not only by personal preferences but also by applicable legislation, court practice, and professional legal advice.
In BSLC’s practice, it is common for clients to seek legal help only after they have already signed an unbalanced preliminary agreement, paid a “reservation deposit” in cash without safeguards, or even completed a transaction—only to later discover that the property is encumbered, disputed, or subject to court claims. To avoid such outcomes, we examine ten essential considerations every buyer should evaluate in advance.
These include:
- whether an estate agency or broker is necessary at all
- the legal risks associated with reservation deposits and preliminary contracts
- preparation for the notarial transfer and the notary’s limited role
- allocation of costs, taxes, and fees
- special cases such as inherited property, marital property regimes, donations, and maintenance contracts
Each section refers to the relevant legal provisions—Articles 18 and 26 OCA, Article 100 of the Property Act, Article 14 of the Local Taxes and Fees Act, among others—combined with practical guidance from BSLC’s real-world experience.
Choosing a real estate agency or broker
Selecting a real estate agency or broker is often the first practical step, yet it is frequently done without understanding the legal implications. Bulgarian law does not license or regulate real estate brokers through a dedicated statute. This regulatory gap creates both flexibility and significant risk.
❗ Important:
Real estate brokers in Bulgaria are not licensed, not legally supervised, and do not bear professional liability comparable to lawyers.
A brokerage agreement is usually a mandate contract under Article 280 OCA, whereby the client pays a commission for intermediary services. However, many such agreements contain clauses obliging the client to pay a commission even if the deal fails due to legal defects (e.g. discovered encumbrances). There are also cases of double commissions, where two agencies claim payment for the same property.
Particularly problematic are situations where one agency represents both buyer and seller without disclosure—creating a clear conflict of interest. Brokers have no legal duty to perform a full legal due diligence of the property. Only an адвокат, under Articles 6 and 7 of the Attorneys Act, is obligated to act solely in the client’s interest and bears professional liability for errors.
📌 BSLC recommendation:
Before signing any document with a broker—inspection protocol, reservation form, or commission agreement—consult a real estate lawyer.
❗️ Important! Many brokers and agencies in Bulgaria have the incorrect practice of claiming on the phone or in a personal conversation that you will not owe a commission, but later it turns out that with your signature on the protocol for viewing the property you have also assumed financial obligations! There were even cases in the media of foreigners who, in their absence, turned out to owe thousands of leva to brokers they did not even know and who filed lawsuits or injunctive proceedings, after which they sold the property to people to take their money. Whether you are a foreigner or a Bulgarian citizen, we strongly advise you NOT to trust brokers who are not your personal friends.Brokers in Bulgaria are NOT subject to licensing and are NOT LIABLE before the law as a lawyer with full legal capacity brings!
In the practice of BSLC, we often encounter cases in which a client has signed an intermediary contract with unclear content, paid a caparo without express guarantees, or entered into a transaction under conditions that make the notarial deed destructible or void. Therefore, we always recommend: before concluding any document with an agency or broker — consult a knowledgeable lawyer.
Reservation deposits (“stop-caparo”) – should you pay them?
A reservation deposit is typically a small amount, usually between 1,000 and 5,000 EUR , that a potential buyer transfers to the broker or seller in order to temporarily “preserve” the property — that is, to convince the seller to stop offering it to other buyers until a final decision or signing a preliminary contract. It is not regulated as an independent legal institution in the Law on Obligations and Contracts, nor does it exist in Bulgarian property law as a separate form of binding. In essence, if there is no contract expressly agreed and signed in writing, in which it is clearly defined that this amount is a “deposit” within the meaning of Article 93, para. 1 ZDA, it does not have binding effect on the parties, and in many cases it is simply a “voluntarily surrendered deposit”, which is difficult to recover in the event of a cancellation of the transaction.Bulgarian law does not recognise this as an independent legal institution. Unless it is expressly defined as earnest money under Article 93 OCA, it creates no binding obligation.
Key risks include:
- payment before any legal due diligence
- lack of information about mortgages, disputes, or ownership
- pressure tactics by brokers (“someone else is buying today”)
- cash payments without receipts, violating cash payment restrictions
❗ Payments over BGN 1,000 must be made by bank transfer under Bulgarian law.
BSLC’s position is clear: do not pay any deposit before a full legal check and a lawyer-drafted preliminary contract. Otherwise, the amount may be lost without realistic recovery options. reservation deposit (“stop-caparo”)
The most significant risk in paying a reservation deposit (“stop-caparo”) arises from the fact that it is required too early — before any legal verification has been carried out. The buyer often does not have complete information about the legal status of the property, about possible foreclosures, mortgages, litigation, rights of third parties, as well as about the ownership history. Brokers usually convince the prospective buyer that if he does not give a “deposit immediately”, he will lose the property, without indicating that even if there is an “exclusive contract” between them and the seller, it does not bind the buyer with any obligations.
❗️ In many cases, brokers insist that the reservation deposit be given in cash and out of any contract, often without even a receipt. This is not only legally unjustified, but also constitutes a violation of Art. 3 of the Law on Limitation of Cash Payments, according to which all payments over BGN 1 000 must be made by bank transfer. Even when the so-called “inspection protocol” or “deposit agreement” is signed, it often includes hidden clauses with which the buyer, without realizing it, undertakes to pay the commission, and if he refuses to purchase the property, loses the deposit. These contracts, although formally named, rarely contain clear obligations for the seller — e.g. not to enter into a contract with a third party, to recover the windfall in the event of an obstacle to a transaction, etc.
Therefore, to the question “should a reservation deposit be paid?” — the answer is a categorical “no”, before making a comprehensive lawyer check of the ownership, encumbrances and compliance of the property with the requirements of the ZUT, the Cadastre and the registers of the Registry Agency. Only in the case of a preliminary contract drawn up by a lawyer, with clearly spelled out clauses regarding a down payment, deadlines, penalties and legal guarantees for the buyer, can one speak of reasonable protection when depositing such an amount. Otherwise, there is a real risk that it will be lost without the possibility of recovery.
The BSLC advises you: do not pay a capar before a lawyer's consultation. Even if you are under pressure from a broker or seller — call or send us a draft contract. This is the only way to ensure that your interests are truly protected.
Preliminary contract - should it be concluded and entered
The preliminary contract for the purchase and sale of real estate in Bulgaria constitutes an obligation of the parties to conclude a final contract in the future under previously agreed essential conditions. According to Art. 19, para. 1 ZDA: “The preliminary contract for the conclusion of a certain final contract, for which a notarial or notarized form is required, must be concluded in writing.” This means that even if the preliminary contract itself does not have a property transfer effect, it gives rise to a binding relationship between the parties, which can be protected in a judicial order.
The legal force of the preliminary contract lies in the fact that each of the parties can ask the court to declare it final if the counterparty refuses to fulfill the obligation assumed. According to Art. 19, para. 3 ZDA: “Any of the parties to the preliminary contract may file a claim for the conclusion of the final contract. In such a case, the contract shall be deemed to have been concluded at the time when the decision enters into legal force. ' This decision is of a constitutional nature — it replaces the final contract and gives rise to a property transfer effect.
The preliminary contract itself is not subject to registration pursuant to Article 3 (1) of the Registration Regulations, as it does not constitute an act transferring or establishing a right in rem. However, the registration of a statement of claim under Art. 19, para. 3 The ZDA has an important disclosure-protection effect — if it is carried out before a possible transfer of the property to a third party, the latter cannot oppose its acquisition to the plaintiff.
As for possession, after the conclusion of a preliminary contract, the buyer can enter into de facto power over the property, but this does not make him the owner. Possession is a factual state within the meaning of Art. 68, para. 1 ZS — “the exercise of factual power over an object which the possessor holds personally or through another as his own.” It is not a subjective right, but is treated as a legal fact that, under certain conditions, can lead to a limitation period of acquisition.
In legal practice and theory it is accepted that in case of a preliminary contract with the transfer of possession and conscientious behavior of the acquirer, the acquirer may enjoy the rights of a bona fide improver under Art. 70, para. 3 OZ. In addition, case law (incl. Decree No. 6/1974 of the Plenum of the Supreme Court) also recognizes other categories of unscrupulous owners who are compensated as improvers.
The Preliminary Contract is not mandatoryby law on the validity of a transaction with real estate, but when buying and selling in real life situations it is Highly recommended tool, especially when there is a period of preparation between its signing and the declaration of the final notarial deed — for example, for arranging financing by credit, obtaining consent from co-owners or certificates from institutions.
In the practice of BSLC, we observe that often buyers enter into a final contract immediately, without any prior arrangement, especially if the seller insists on a “quick deal”. This creates a real risk: if, for example, the notarial deed is signed without clear clauses regarding the term of release of the property, obligations of the parties for taxes, improvements or technical malfunctions, any consequences that arise remain entirely the responsibility of the buyer. The preliminary contract makes it possible to agree on all essential clauses and to reflect the actual agreement on them in writing, in accordance with Art. 19, para. 2 ZD.
If the parties enter into such a contract, but subsequently one of them refuses to confess the transaction, the other party has the right to file a claim under Art. 19, para. 3 CPA to declare the contract final. When winning the claim, the decision of the court replaces the notarial deedand has a property transfer effect — that is, the buyer acquires the right of ownership even without a notary. Moreover, if the statement of claim under Article 19, para. 3 ZDZ in the Land Registry, third parties — including a new buyer, if the seller transfers the property in the meantime — cannot rely on their acquisition and the rights of the first buyer will be protected (art. 114 ZS cf. Art. 113 OZ).
Therefore, the registration of the preliminary contract itself is not provided for in the law, but the entry of the statement of claim under Art. 19, para. 3 ZDA is possible and necessary as a protective measure in a legal dispute. Therefore, the practice of BSLC is: if a preliminary contract is concluded, it should be drawn up by an expert legal professional who will not only clearly formulate the essential clauses, but also assess whether in the case it is necessary to file a statement of claim for maximum protection of the interest of the party, especially in case of suspicion of parallel negotiations with other buyers.
❗️ IMPORTANT! The provision of an advance payment within the framework of a preliminary contract drawn up by a lawyer is a significantly safer and legally protected form than the one popular in the practice of “stop-caparo”, which is often settled by an informal protocol or receipt, without specific binding content and legal consequences. The provision within the meaning of Article 93 of the Law on Obligations and Contractsis served not only as evidence of a concluded contract, but also as a sanction— in the event of culpable default on the part of the buyer, he loses it, and in case of guilty refusal on the part of the seller, the latter is obliged to return it in a double amount. This provides real balance and protection for both parties. Zand unlike it, the so-called “stop-caparo” or “booking fee” required by brokers is often not tied to an obligation to conclude a final transaction, does not carry penalty consequences in case of refusal, and sometimes even does not return. BSLC's clients have repeatedly suffered from similar situations, in which it turns out that the “stop-caparo” did not give rise to any legal obligation for the seller, and the broker is not responsible, because it is not a party to the transaction. That's why we always recommend: do not pay anything outside a preliminary contract without consulting a lawyer!
Preparing for the conclusion of a transaction
Preparation for the conclusion of a final contract for the purchase and sale of real estate is a critical stage that does not tolerate compromises, since any missed inspection or neglect can lead to serious legal, financial and even criminal consequences.
According to Art. 18, para. 1 of the Obligations and Contracts Act, contracts for the transfer of ownership of immovable property must be concluded in the form of a notarial deed, and Art. 264, para. 1 of the DOPC requires the submission of a tax assessment by the competent municipality at the time of the transaction. Therefore, the parties must prepare and collect specific documents in advance, such as:
- Current sketch of the property or schematic plan, issued by the relevant office of geodesy, cartography and cadastre — if the property is registered in the cadastral map.
- Certificate of tax assessment, issued by the Directorate “Local Taxes and Fees” of the municipality in whose district the property is located.
- Ownership document— notarial deed, court decision or other valid title.
- Certificate of heirsif the seller is the heir.
- Certificate of absence of burdens, issued by the Registry Agency — to check whether the property is mortgaged, foreclosed or encumbered with limited real rights.
- Marital status document, especially if it is a matter of sale of property acquired during marriage — under Art. 26 of the SC.
Outside of the documentary side, it is necessary to consider and the actual condition of the property— is there illegal construction, does it correspond to the description in the cadastre and the notarial deed, does it have access, lots for electricity and water, is it inhabited by third parties, etc.
❗️ It is also important that the parties discuss and enter all the arrangements even before confessing the transaction — price, method of payment, date of transfer of possession, liability for hidden defects, etc. Therefore, it is highly recommended that a full legal check be carried out before finalizing the transaction and that the final contract be drawn up by an experienced real estate lawyer — this is the only way to ensure that the transaction will be valid, adversarial and unencumbered.
Declaration of a transaction before a notary and conclusion of a contract of sale in the form of a notarial deed
The declaration of a real estate transaction through a notarial deed is not just a formal stage of the purchase and sale, but a key legal moment in which a derivative transfer of the right of ownership takes place, according to Art. 18, para. 1 of the Obligations and Contracts Act (Obligations and Contracts Act). It is at this stage that the final purchase and sale contract materializes and the transition of ownership from the seller to the buyer takes place, provided that the requirements for the validity of the contract and the legal capacity of the parties are met.
The confession procedure begins with the submission of all required documents to the notary — certificate of tax assessment, sketch or scheme, title documents, certificate of absence of encumbrances, declarations under the GDPR and art. 25, para. 8 NGND et al. The notary is obliged to carry out a number of checks, including on the property lots in the Land Registry, on the data from the Cadastre and in the public registers of property encumbrances. It is here that it should be emphasized that, although a notarial transaction is a form of reality, it does not in itself guarantee the validity and stability of the acquisition. The reason is that the transfer is a derivative method — it derives the rights of the acquirer from the rights of the rightholder, and if the latter is not the owner or has a vice in title, the new owner may be vulnerable.
As the classic formula “nemo dat quod non habet” indicates (no one can transfer more rights than he has), the acquisition by notarial deed is not absolute. If the right holder was not the owner or if the property is subject to a third party right in rem that was not reflected or discovered during the inspection, there is a risk for the acquirer. That is why, before confessing the transaction, it is crucial to carry out a thorough legal check by a lawyer, including analysis of previous transactions, the identity of the objects, the correctness of the previous acquisition grounds, as well as verification for pending claims proceedings, foreclosures, mortgages, rights of third parties, etc.
In this sense, although confession is a necessary and formally stable part of the transaction, it does not negate the need for explicit legal certainty, since it is a derivative method of acquiring property, the operation of which depends on the existence and stability of the right with the previous owner. Legal protection here is not an unnecessary precaution, but a requirement of legal logic — it compensates for the vulnerabilities of the notarial form through legal expertise and verification of the legal context of the property.
Taxes and fees - what they are and when they are due
In any transaction with real estate in Bulgaria, the buyer and seller should bear in mind several mandatory expenses that arise both from fiscal obligations to the municipality and from the actual execution of the notary confession. According to Article 44 of the Local Taxes and Charges Act (ZMDT), the transfer of ownership of immovable property is subject to local tax, known as the “tax on the acquisition of property for consideration”. The amount of this tax is determined by an ordinance of the relevant municipal council and is between 2% and 3% of the agreed sale price or the tax assessment — the higher of the two is taken.
This tax is usually paid by the buyer immediately before or on the day of the notarial confession and is a condition for the execution of the transaction, since the notary does not have the right to confess a transaction without presenting a payment document for paid local tax. This is part of the mandatory set of documents, which according to Art. 25, para. 8 of the Law on Notaries and Notarial Activities (ZNDA) should be attached to the notarial deed.
In addition to the tax, the buyer pays a notary fee for declaring the transaction under the Tariff on Notary Fees to the Law on Notaries and Notarial Activities. It is calculated in proportion to the sale price or tax assessment, whichever is higher, and follows a progressive scale. For example, for a property worth BGN 100,000, the notary fee will be approximately BGN 600-700, but with a higher value of the property it may exceed BGN 1,500.
In addition, a fee is paid for the registration of the notarial deed in the Property Register at the Registry Agency, which according to the Tariff for State Fees to the ZKIRA is 0.1% of the value of the transaction. This fee is the responsibility of the buyer and is a prerequisite for the inviolability of the acquired right vis-à-vis third parties within the meaning of Art. 113 of the Property Act (ZP).
It is important to know that along with the basic costs, some municipalities impose additional administrative fees — e.g. for issuing certificates, references, or for transactions with limited real property rights such as building rights. Also, if the transaction is concluded with the participation of a mortgage, fees for the establishment and registration of the mortgage are also due, which are also tied to the amount of the secured claim.
In addition to the local tax under Art. 44 ZMDT, when buying a property, the new owner must also provide for the obligations related to the so-called municipal waste tax (also known as the “garbage tax”). According to Art. 62 of the Local Taxes and Fees Act, every person who owns real estate owes a fee for the relevant service provided by the municipality — collection, transportation, disposal and maintenance of cleanliness around the property.
The garbage fee is set by the municipal council depending on the location of the property, the way of use (residential, non-residential, holiday, etc.) and the type of service, the formula usually includes percentages on the tax assessment or a fixed amount per square meter. Its size can vary significantly — for example, for a residential property in the metropolitan area “Izgrev” it can be less than 1‰, while in central or resort areas such as Lozenets or Bansko it reaches up to 3-4‰ of the tax assessment of the property per year.
A garbage fee is due for the entire calendar year, regardless of when the property was acquired. Practice shows that when buying a property after June 30, municipalities usually charge the fee proportionally, but there is no statutory obligation to do so, and the obligated person under Art. 11 ZMDT is the one that is the owner as of January 1 of the year. Therefore, it is advisable that the parties also regulate in the notarial deed the amount of this fee for the respective year, explicitly including an arrangement for distribution or assumption by one of the parties.
An important clarification is that the garbage tax is an annual obligation that is paid to the respective municipality, usually in two or four installments — until April 30 and until October 30 (or quarterly). If it is not paid on time, interest is charged, and in the case of prolonged non-payment, the municipality can initiate compulsory collection, including through hard enforcement by the NRA.
Therefore, in the context of a real estate transaction, we advise BSLC clients to always request a reference from the municipality for local taxes and fees due — including building tax and garbage fee — for the last 5 years, as these public obligations are repaid with a 5-year statute of limitations, but may be subject to enforcement on the property itself if not were paid by the previous owner.
Therefore, the real cost of the transaction far exceeds the agreed purchase price and includes a substantial financial component that requires prior planning and consultation with an expert lawyer. It is he who will prepare an estimate of taxes and fees, warn you of possible fiscal pitfalls (e.g. in transactions with inherited properties or donations) and ensure that the amounts are paid on time and in the correct order, so that the transaction is not only valid, but also effective in relation to the state and third parties.
Purchase and sale of hereditary property - features
The purchase or sale of hereditary propertyin Bulgaria raises a number of legal questions, mainly related to the legitimacy of the right to property of the person claiming to be an heir. The main rule is that the heir becomes the owner of the inherited property only if he has accepted the inheritance, pursuant to Article 48 of the Inheritance Act (ZN), which states: “Inheritance is acquired by its acceptance. Acceptance produces action from the discovery of inheritance.”. In this provision, the term “opening of the inheritance” is understood to mean the death of the heir.
Acceptance can be done in two ways — explicitly(by written application to the district court at the last permanent address of the heir — art. 49, para. 1 ZN) or silently(through conclusive actions, from which it is clear that the person has accepted the inheritance — for example, the use of the property, leasing, etc., according to Art. 49 para. 2 ZN. It is important to note what action constitutes acceptance of the inheritance and what does not -according to the interpretative practice of the Supreme Court ordinary use of the property is NOT equivalent to acceptance of the inheritance). If such acceptance is not available, the heir is not the beneficial owner and cannot carry out valid dispositive transactions. Any such transaction would be null and void on the basis of Article 26, para. 2, prev. 1 of the ZDA, due to the absence of a material transfer basis.
There are other specific risks in transactions with inherited property:
— Frequent co-ownership between heirs— if all the co-heirs are not involved, only ideal parts are transferred, and not all of the property, and it is even possible that the transaction may turn out to be relatively invalid in relation to one of the heirs (if no consent has been obtained e.g.
— Possible restitution or inheritance claims from unaccepted or contested wills— which can make the transaction disputable even after confession;
— Unsettled tax or material burdensthat continue to weigh on the property regardless of the change in ownership.
Therefore, before concluding a transaction with hereditary property, it is absolutely imperative that it be carried out full legal check— including the acceptance of the inheritance, the presence of co-owners, pecuniary encumbrances, litigation and all documents on the property of the heir. The BSLC team provides legal certainty through a thorough inspection of the property, as well as assistance in case of voluntary or judicial division, preparation of a preliminary contract or notarial deed.
Purchase and sale of property in the regime of family property community
When buying or selling real estate that is part of the matrimonial property community (SPO), there are several critical legal features that, if ignored, can lead to the nullity or nullity of the transaction, as well as serious financial consequences for the buyer.
According to Article 21, paragraph 1, of the Family Code, property acquired during the marriage through consideration transactions is a matrimonial property community, unless a separation regime has been agreed. This means that the right of ownership of such property belongs to of both spouses jointly and inseparably. In this context, none of the spouses can independently dispose of the property, including by selling, donating or establishing property rightswithout the explicit consent of the other.
The provision of Article 26, paragraph 2 of the Family Code requires the consent of the spouse to dispose of joint property to be given in writing with a notarized signature, which represents a strict requirement for validity. This requirement applies not only to the final notarial deed, but also to The Preliminary Contractwhen it has as its subject a property representing a SIO.
In the absence of the required consent of the other spouse, the preliminary contract is Relatively ineffectualagainst him, and the final deal — absolutely negligibleif it is carried out only by one spouse without proper representation. In such cases, the buyer may not request the declaration of the preliminary contract as final in accordance with Article 19, paragraph 3 of the Civil Code, and may only seek reimbursement of the amount paid, often through litigation and enforcement proceedings — with all the ensuing costs and risks.
It is important to emphasize that even if the husband or wife knew about the transaction and did not object verbally, this does not replace the requirement of written notarized consent, which is an element of the factual composition of the valid transaction.
Therefore, in any transaction with property acquired during marriage, the buyer must mandatory to establish the marital status of sellers, as well as whether the property falls under the SIO regimeand if so, yes. request and verify the existence of due consent. The surest way to do this is through prior legal verification and drafting of contracts by a skilled lawyer, because brokers and notaries are not responsible for missing consents, except for the authentication of signatures. Only a lawyer, in fulfillment of his obligations under Art. 6 and Art. 7 of the Law on Advocacy, can guarantee the legality of the transaction and the protection of your interests.
In practice, situations are often encountered in which:
— The property was acquired before the marriage, but with common funds — there may be claims for compensatory transformation;
— The property was acquired during the marriage, but by donation or inheritance — it is not a SIO (art. 21, para. 1 SQ.);
— The property is mortgaged or encumbered without the consent of the other spouse — the burden may be null and void.
BSLC's legal team provides full legal expertise in such cases — from verifying the matrimonial regime to drafting and agreeing a consent to sell, protecting against risks in the transformation of personal property and registering all relevant acts. This provides certainty that the transaction will not be attacked in a judicial order by the other spouse.
Donation of property
In the case of a donation of immovable property, there are essential features both in terms of the form and terms of the transaction and in relation to the possible consequences for the donor, donations and third parties — including heirs and creditors. It is for these reasons that donation, although often perceived as an “easier” transaction, requires serious legal analysis before it is concluded.
First of all, the donation of real estate is necessarily carried out by a notarial deed, according to Art. 18, para. 1 of the Obligations and Contracts Act (Obligations and Contracts), which states: “Contracts by which ownership of real estate is transferred must be concluded by a notarial deed.” The formal side of the transaction is an imperative condition for its validity. In addition, unlike selling, donation is a gratuitous transaction, therefore the special provisions of Art. 225—227 ZZD, including the possibility of cancellation of donation when gifts are not appreciated or when the donor is in need.
Donation is also essential for future hereditary relationships. According to Article 30 of the Inheritance Act, testamentary disputes or contesting a reserved part of the inheritance, donations made during life to certain heirs can be “brought” back into the estate through the so-called. Decrease in donations. This means that even years after the donation, if it violates the reserved share of legal heirs, they can demand its return until its recovery.
Donation transactions as well are subject to entry in the Property Register pursuant to Art. 112, b. “a” of the Property Act, the entry having declarative action against third parties, but plays a key role in the adversarial nature of the transaction. If the donation is not registered, it may not be recognized in a dispute with creditors or in the event of foreclosure on the property.
Particular attention should be paid when the property is family property community— in this case, pursuant to Article 24 (3) of the Family Code, can not be donated by one spouse without the consent of the other, since it constitutes a disposition of common property. In the absence of such consent, the transaction is relatively invalid in relation to the non-participating spouse, respectively, his heirs.
Last but not least, the donation also has fiscal implications. Although in most cases no tax is due between relatives in a straight line, the donation taxable donation under the Local Taxes and Fees Act when carried out between persons who are not in the excluded categories. It is important to calculate in advance the potential amount of this tax, as well as to take into account the presence of other costs - notary fees, registration fees and government fees.
Transfer against maintenance and care
This aleatory contract transfers ownership immediately but obliges the acquirer to provide lifelong care. While it cannot be challenged by heirs as a donation, it may be rescinded for non-performance under Article 87 OCA.
Courts strictly assess whether care matches the transferor’s needs. Failure leads to rescission and reversion of ownership.
🛡️ BSLC guidance:
Such contracts require meticulous drafting, safeguards (e.g. retained usufruct), and clear explanation of risks—especially for elderly or vulnerable parties.
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