If the right to a tenancy of a cooperative apartment arose during the marriage, the spouses are joint members of the cooperative and both must sign the membership rights transfer agreement. If one spouse held membership before the wedding, that spouse is the sole member, but the apartment is in their joint tenancy and the transfer directly affects the other spouse. It is therefore safe to have both spouses’ signatures on the agreement, including when buying from a married couple.
One spouse wants to sell the cooperative apartment because they no longer live there, and the other disagrees or is abroad. Seen from the other side, the same situation reaches the buyer: only one spouse comes to sign the membership rights transfer agreement and claims to be the member of the cooperative. The answer depends on when and how the spouses came by the cooperative apartment.
Joint membership of spouses
With a cooperative apartment, joint tenancy can arise only between spouses (Section 700(3) of the Civil Code). If the right to conclude a tenancy agreement for a cooperative apartment arises during the marriage, even if to only one of the spouses, the law couples joint tenancy with joint membership of the cooperative:
If, during the marriage, the right to conclude a tenancy agreement for a cooperative flat arises to only one of the spouses, joint membership of the spouses in the cooperative arises together with the spouses’ joint tenancy of the flat; both spouses are jointly and severally entitled and obliged under that membership.
— Section 703(2) of the Civil Code (unofficial English translation)
Where membership is joint, there is therefore no ‘principal’ member who could deal with the membership rights alone. Both spouses sign the membership rights and duties transfer agreement as transferors. The rule does not apply where the spouses do not permanently live together (Section 703(3)); that, however, is a question of fact which cannot be relied on in a transfer without evidence.
Membership before the wedding
If one of the spouses held the right to conclude a tenancy agreement for a cooperative apartment before the marriage was entered into, the marriage gives rise to joint tenancy of the apartment for both spouses (Section 704(2)). That provision does not mention joint membership; the member of the cooperative remains the person who was a member before the wedding. A transfer of membership, however, costs the spouses the tenancy of the apartment, and for joint tenancy the following applies:
Ordinary matters concerning the joint tenancy of a flat may be dealt with by each of the joint tenants. In other matters the consent of all of them is required; otherwise the legal act is invalid.
— Section 701(1) of the Civil Code (unofficial English translation)
In a dispute about such a transfer, the courts treated a transfer of membership extinguishing the tenancy of the apartment as a matter that is not an ordinary one, and held an agreement concluded without the spouse’s consent to be invalid. The Supreme Court rejected the appeal on a point of law against that without assessing the question on its merits (order file no. 5 Cdo 125/2008), so this is the view of the lower courts rather than settled Supreme Court case law. Invalidity under Section 701(1) is relative: the act is treated as valid until the affected spouse invokes the invalidity (Section 40a). For a buyer this means uncertainty which may persist even after the price has been paid. In this case too it is therefore right for the other spouse to give written consent to the agreement, preferably on the agreement itself.
After a divorce
Divorce does not automatically end joint membership. If the divorced spouses do not reach agreement, the court will, on the application of one of them, decide to terminate the joint tenancy and determine which of them will remain the tenant as a member of the cooperative; that also ends the joint membership (Section 705(2)). Until agreement is reached or a decision is made, a former spouse cannot transfer the membership rights alone. If one of the spouses held the right to the tenancy before the marriage, the joint tenancy ends on divorce and the right to use the apartment remains with that spouse.
How to check this before signing
- The cooperative’s certificate of membership. The cooperative keeps a register of members and can say whether membership is sole or joint.
- When the membership arose. Compare the date on which the right to the tenancy arose with the date of the seller’s wedding; that determines whether Section 703 or Section 704 applies.
- Marital status today. From divorced sellers, ask for the agreement or the court decision on who remained a member.
- Both spouses’ signatures. If in doubt, have both of them sign the agreement.
The transfer takes effect in relation to the cooperative upon submission of the agreement to it, or on a later date specified in the agreement (Section 230 of the Commercial Code), so a missing spousal signature must be dealt with before submission. How a cooperative apartment differs from an apartment held in ownership is discussed in buying a cooperative apartment; a flat registered in the cadastre is subject to a different regime, described in a spouse’s consent to the sale of a property.
If you are transferring or buying a married couple’s cooperative apartment, we will check with the cooperative who the member is and prepare the agreement so that everyone affected by the transfer signs it. We do this as part of our housing cooperative interest transfer service.
This answer provides general information on the law as at 12 September 2026. It does not constitute legal services or replace an assessment of an individual case. The details of your situation may differ. Book a consultation to discuss them.
