Why A Family Dwelling Involvement Is Established And Other Provisions

Original Language Title: Por la cual se establece la afectación a vivienda familiar y se dictan otras disposiciones

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258 DE 1996

(January 17)

Official Journal No. 42,692 of 18 January 1996

By which the affectation to family housing is established and other provisions are dictated.

Vigency Notes Summary

THE CONGRESS OF THE REPUBLIC

DECRETA:

CHAPTER I.

INVOLVEMENT IN FAMILY HOUSING.

ARTICLE 1o. DEFINITION. 1 of Law 854 of 2003. The new text is as follows: > Entiendese affected to family housing the real property acquired in its entirety by one or both spouses, before or after the celebration of the marriage destined for the family room.

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ARTICLE 2o. CONSTITUTION OF AFFECTATION. The affectation referred to in the previous article operates by law ministry with respect to the dwellings that are acquired after the validity of this law.

Real estate acquired prior to the validity of this law may be affected by family housing by public deed granted by both spouses, or in accordance with the notarial or judicial procedure established in this law.

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ARTICLE 3o. DOUBLE SIGNATURE. The buildings affected by family housing may only be disposed of, or shall constitute a tax or other real right on them with the free consent of both spouses, which shall be understood to be expressed with their signature.

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ARTICLE 4. LIFTING OF AFFECTATION. Both spouses may at any time, by common agreement and by public deed subject to registration, lift the affectation to family housing.

In any case, the affectation may be lifted, at the request of one of the spouses, by virtue of judicial providence in the following events:

1. Where there is another housing actually inhabited by the family or is even summarily proven to be there; circumstances that will be qualified by the judge.

2. When the competent authority decrees the expropriation of the property or the judge of tax executions declares the existence of a tax obligation or public contribution.

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3. When judicially, one of the spouses is suspended or deprived of the fatherland.

4. When judicially the absence of any of the spouses is declared.

5. When the civil incapacity of one of the spouses is declared judicially.

6. When the conjugal society is dissolved by any of the causes provided for in the law.

7. For any fair reason appreciated by the family judge to lift the affectation, at the request of a spouse, the Public Ministry or a third party injured or defrauded with the affectation.

PARAGRAFO 1o. In the events referred to in the second paragraph of this article, the public entity expropriating or lending the tax or contribution may request the lifting of the affectation.

PARAGRAFO 2o. 2 of Law 854 of 2003. The new text is as follows: > The affectation to family housing shall be extinguished in full right, without the need for a judicial decision, by actual or presumed death of one or both spouses, except that for a fair cause the heirs minor If the property is inhabited, ask the judge that the affectation be maintained for as long as it is necessary. From the application you will know the Family Judge or the Municipal Civil Judge or Municipal Promiscuo, in default of that, by summary verbal process.

The foregoing measure may not extend beyond the date on which the minors comply with the age of majority or are emancipated, in which case, the lifting of the affectation operates in full right, or when due to invalidity or serious illness, by the Judge, it is impossible for the child to fend for himself.

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ARTICLE 5o. affectation to family housing referred to in this law shall only be relied upon by third parties from the register of the Office of the Registry of Public Instruments and the corresponding Folio de Entúntua Inmobiliaria.

PARAGRAFO. The houses of social interest constructed as improvements in foreign property may be registered as such in the Folio de Entenación Real Estate of the respective property and on them constitute affectation to family housing or family patrimony inembargable, without ignorance of the rights of the owner of the property.

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ARTICLE 6o. OBLIGATION OF NOTARIES. For the granting of any public deed of disposal or constitution of taxation or real rights on a property intended for housing, the notary shall inquire into the owner of the property about whether he has in force, marriage, marriage or marital union in fact, and the latter must declare, under the seriousness of the oath, whether the property is affected by family housing; except where both spouses are to sign the deed.

" The Notary will also investigate the purchaser of the property for housing if it has a marital society in force, marriage or marital union in fact, and if it has another property that is affected by family housing. In the absence of any real property already affected by family housing, the notary will leave the express record of the constitution of the affectation by the ministry of the law.

With all, the spouses of common accord can declare that they do not submit the property to the affectation of family housing. "

"The Notary that omits to state in the respective public deed of the duties set forth in this article will incur a causal of misconduct."

"The legal acts that do not know the affectation to family housing will be vitiated by absolute nullity."

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ARTICLE 7o. INEMBARGABILITY. The immovable property under family housing is inembargable, except in the following cases:

1. Where the property has been incorporated in the property before the registration of the affectation to family housing.

2. Where the mortgage has been constituted to guarantee loans for the acquisition, construction or improvement of the dwelling.

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ARTICLE 8o. EXPROPRIATION. The decree of expropriation of a property will prevent its affectation to family housing and will allow the judicial lifting of this charge to make the expropriation possible.

The declaration of public utility and social interest or the affectation to public works of a low property affecting family housing may lead to the direct voluntary disposal of the building, with the signature of both spouses.

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CHAPTER II.

PROCEDURAL RULES

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ARTICLE 9o. NOTARIAL PROCEDURE. When it is necessary to constitute, modify or lift the affectation to family housing, the spouse concerned will go to a notary of the family's home with the object of processing his or her application, with a citation of the another spouse.

If both spouses are in agreement, the constitution, modification or lifting of the affectation to family housing by public deed, in the event of the failure to reach the agreement, will be possible to the judge of the family competent.

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ARTICLE 10. JUDICIAL PROCEDURE. For the constitution, modification or judicial lifting of the affectation to family housing, the judge of the place of location of the building shall have jurisdiction, by means of a summary of the oral procedure.

The constitution of the affectation to family housing and its modification or uprising may be accumulated within the processes of declaratory of absence, presumed death or disappearance, civil interdiction of the father or of the mother, loss or Suspension of parental rights, divorce, separation of bodies or property and liquidation of the conjugal society. In such cases, he/she will be competent to know of this measure the judge who is aware of the referred processes.

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ARTICLE 11. REGISTRATION OF THE CLAIM. When the divorce is filed, the judicial separation of bodies or property, the declaration of marital union in fact, the liquidation of the conjugal society or the estate between permanent companions; the plaintiff may request the registration of the application in the Office of the Registry of Public Instruments where the property subject to the affectation of the family housing and the buildings belonging to the conjugal society, or in any of the entities that the law establishes for the registration of goods subject to this requirement.

The registration of the application may be lifted on the joint request of the parties in dispute or by termination of the proceedings.

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ARTICLE 12. PERMANENT COMPANIONS. The provisions of this law concerning the spouses shall apply extensively to the permanent companions whose union has lasted for at least two years.

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ARTICLE 13. VALIDITY. This law governs from the date of its promulgation and repeals all provisions that are contrary to it.

The President of the Senate of the Republic,

JULIO CESAR GUERRA.

The Secretary General of the honorable Senate of the Republic,

PEDRO PUMAREJO VEGA.

The President of the honorable House of Representatives,

RODRIGO RIVERA SALAZAR.

The Secretary General of the honorable House of Representatives,

DIEGO VIVAS TAFUR.

COLOMBIA REPUBLIC

NATIONAL GOVERNMENT

Publish and execute.

Dada en Santafe de Bogota, D.C., a 17 de enero de 1996.

ERNESTO SAMPER PIZANO

The Ministry of Justice and Law,

CARLOS EDUARDO MEDELLIN BECERRA.

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