Cancellation or lifting of the family home encumbrance: notarial procedure by mutual agreement (Law 258 and Law 854), registration in the property record and when a family court judge is required

Quick answer: if you and your spouse or permanent partner agree, the family home encumbrance is lifted by public deed before a notary and is recorded in the property registration (folio). If there is no agreement, only the family judge can lift it, and only for the grounds set out in the law.

The scenario is typical: you already have a buyer or the bank has approved a loan, you request the certificate of title and freedom (certificado de tradición y libertad), and an annotation appears that reads afectación a vivienda familiar. Heads up: this is not a seizure (embargo). If what you see on the folio is a seizure, go instead to esta guía sobre cómo levantar un embargo. This text is general guidance; the notarial draft and competence are confirmed by the notary with the folio in hand.

What the encumbrance is and what it is not

According to Law 258 of 1996, as amended by the current text of Law 854 of 2003, a property acquired in full by one or both spouses, before or after marriage, and intended as the family's residence, is considered encumbered as a family home. It is a limitation on ownership. Note: that the couple co-owns the property does not prevent the encumbrance; that reading from rulings and instructions prior to 2003 has been superseded.

Do not confuse it with the family patrimony that cannot be seized. These are different figures: the General Procedural Code (Código General del Proceso), in its article 21, separates the authorization to cancel the family patrimony (numeral 4) from the lifting of the encumbrance (numeral 12). Nor is it a creditor's seizure, and this deed does not lift those.

How it appears on the folio

For homes acquired after January 18, 1996, the encumbrance operates by operation of law. When buying, the notary must inquire about marriage, marital partnership (sociedad conyugal) or marital union, and record the encumbrance, unless the spouses jointly declare that they do not subject that property, or the buyer already has another encumbered property. If that opt-out was not made, the record is usually in the purchase deed, not in a separate deed.

As against third parties, the encumbrance is only enforceable from its annotation on the property registration folio (folio de matrícula inmobiliaria). To find out whether you have it, request the certificate on the official SNR portal and read the annotations for limitations on ownership.

Double signature and express cancellation in the deed

While the encumbrance exists, the property can only be sold or mortgaged with the free consent of both, expressed with their signatures. Acts that ignore the encumbrance are null and void of absolute nullity.

But note, here is the common mistake: the two signatures alone are not enough. Administrative Instruction SNR 01-46 of 2001 orders the registrar to reject the sale or the lien if the encumbrance is not expressly cancelled. That cancellation can go in the same sale or mortgage deed, or in a separate deed. A promise of sale does not record it either; look at the clauses of the promise and remember that the cancellation takes effect in the deed and in the registry.

The notarial procedure by mutual agreement

Both spouses can lift the encumbrance at any time, by mutual agreement, through a public deed subject to registration. The steps:

1. The interested party goes to a notary in the family's domicile, who summons the other spouse or partner.
2. If there is agreement, the cancellation deed is executed (or the cancellation is included in the sale or mortgage deed).
3. The deed is filed at the registry office and recorded in the folio.
4. Request a new certificate and verify that the limitation has been cancelled.

As an example, a notary's office published in 2020 as required documents the IDs of both parties, a copy of the property deed, a copy of the act that created the encumbrance, and the certificate of title. Take it as a reference, not as a closed national list: ask the notary what they require.

Regarding cost, the 2001 SNR instruction classifies this act as without amount (sin cuantía). I cannot give you a figure with certainty: request the written settlement from the notary and the registry office. The general costs of the sale are in esta guía de gastos notariales y de registro. And do not advance money to anyone who promises to "erase" the folio outside the notary and the registry: that person does not exist in the procedure.

Without agreement, death or separation

If your partner does not want to sign, the notary cannot lift the encumbrance. You must go to the family judge of the property's location, who decides in a single instance through the proceeding that Law 258 calls verbal sumario. It only proceeds on the grounds of article 4:

• Another home that the family already inhabits or that the judge considers will be inhabited.
• Expropriation, or a tax obligation or public contribution.
• Suspension or deprivation of parental authority (patria potestad).
• Absence.
• Civil incapacity.
• Dissolution of the marital partnership (sociedad conyugal).
• Just cause assessed by the judge, at the request of a spouse, the Public Ministry, or a third party harmed or defrauded.

Separation or divorce do not lift the encumbrance on their own; the dissolution of the marital partnership is a ground, and the lifting can be joined to the family proceeding that is already open.

Different is the case of the actual or presumed death of one or both spouses: the encumbrance is extinguished by full right, without a judge. The exception is minor heirs who live in the property, who may ask the judge to keep it for the necessary time, not beyond the age of majority or emancipation, except in cases of disability or serious illness.

Permanent partners and same-sex couples

The rules apply to permanent partners whose union has lasted at least two years. Under Ruling C-029 of 2009, they also protect same-sex couples under the same conditions, under the regime of Law 54 of 1990.

Mortgage, seizure and the bank

Encumbered properties cannot be seized, except for a mortgage prior to the registration of the encumbrance or a mortgage to acquire, build or improve the home. The Constitutional Court (C-664 of 1998) conditioned that exception on the prior mortgage having been registered before the encumbrance. If you are going to request a loan secured by a mortgage, the cancellation must be express in the deed; check with your bank what it requires before disbursement. And remember that lifting the encumbrance does not guarantee you can sell: the folio may have a mortgage, seizure or other annotations. Capital gains is another topic, covered in esta guía del impuesto por venta de inmueble.

Honestly, the most annoying part of all this is the time: if you discover the encumbrance the day before signing, the sale falls through or is postponed. Check the folio at the start, not at the end.

When the folio is already clear

When the new certificate no longer shows the encumbrance, you can publish the sale. The steps to offer without an intermediary are in cómo vender su apartamento sin intermediario. An ad that says "deeds up to date" creates distrust if it does not clarify which annotations remain active; be specific and you will save time with lookers.

Frequently asked questions

❓ Can I sell the home with only both signatures, without cancelling the encumbrance?

Two signatures are not enough if the deed does not expressly cancel the annotation. That cancellation can go in the same sale deed, which is then registered; if it is missing, the registrar may return the title (verify with the official source).

❓ Where do I lift the encumbrance if we both agree?

Before a notary in the family's domicile, by public deed, which is then recorded in the folio. The notary summons the other spouse or partner. Afterward, request a new certificate to verify that the limitation has been cancelled (verify with the official source).

❓ What do I do if my spouse or partner does not want to sign?

The notary cannot lift the encumbrance without agreement; you must go to the family judge of the property's location. It only proceeds on the grounds of article 4 of Law 258, such as another inhabited home or dissolution of the marital partnership (verify with the official source).

❓ Do separation, divorce or death cancel the annotation on their own?

Actual or presumed death extinguishes the encumbrance by full right, except for the request of minor heirs who live in the property. Separation or divorce do not erase it if no one requests its lifting, although they can be joined to that proceeding (verify with the official source).

❓ Does this also cover permanent partners and same-sex couples?

Yes, it covers permanent partners with a union of at least two years and, according to Ruling C-029 of 2009, same-sex couples under the regime of Law 54 of 1990. The lifting rules are the same (verify with the official source).

❓ How much does the cancellation cost at the notary and at the registry?

The 2001 Superintendence instruction classifies this act as without amount, but the value is given by the written settlement from the notary and the registry office. There is no peso figure here; request it in writing before signing (verify with the official source).

❓ How does it differ from family patrimony and from a seizure?

The family home encumbrance is the limitation of Law 258. The family patrimony that cannot be seized and a creditor's seizure are different procedures and are not lifted with this same deed; each has its own route (verify with the official source).