Division of sambo joint property (bodelning)

2016-11-02 i Bodelning
FRÅGA
Hej,I am a foreigner who has bought an apartment with my ex-sambo. I own the place 48% and him 52%. We made one loan together that we shared 50/50. He owns more of the apartment as he had cash in hand to invest directly for the apartment. We are separated now, he still lives there, and I have moved abroad. I will sell him my parts of the apartment so he can become 100% owner.(1) Does the estimated added value of the apartment is shared accordingly to our 48/52% ownership?(2) As he might sell the apartment in the future, am I entitled to pay today the estimated real estate broker commission?Many thanks for your help,My apologies for this message in English and not in Swedish.
SVAR

Hello and thank you for reaching out to Lawline with your question.

In Sweden the sambo-relationship, including the division of sambos’ joint property, is regulated in sambolagen (the Cohabitees Act). Tax rules can be found in inkomstskattelagen (the Income Tax Act), which are also relevant to your questions. Unfortunately I do not have links to the Acts in English but I have inserted hyperlinks below to the Swedish texts for your reference.

The process of dividing property is called bodelning and it is stipulated in 8 § sambolagen that when a sambo relationship ends, joint sambo property is to be divided amongst the sambos. For the purposes of bodelning, joint property is defined as 'home and household goods obtained for joint use', 3 § sambolagen. This means that the apartment that you bought together qualifies as joint property. It is possible for one sambo to take over the other sambo’s share of joint property via a bodelning, see 16-17 §§ sambolagen.

(1) According to 14 § sambolagen, the main rule for bodelning is that all joint property is to be divided equally i.e. 50/50. This applies regardless of the fact that one party has paid more for the property or owns a bigger part of it. Therefore, you have right to 50% of the apartment which means that if your ex-sambo wants to take over your share, he needs to pay you for 50%.

Having said that, if you have a samboavtal (cohabitation agreement) which is a prenuptial agreement equivalent for sambos, the 50/50-rule may not apply. See 9 § sambolagen. For example, if the samboavtal says that property should be divided according to ownership percentages, that would apply instead. Even without a pre-existing samboavtal, you are of course free to come to an agreement now with your ex-sambo that you will divide according to ownership 48/52.

Another important point in a bodelning is that the market value is used as the price. So, if we assume that you have agreed to divide according to 48/52, he must pay you 48% of the market value to get your share.

2) From a tax standpoint, however, bodelning is not counted as a ‘real’ sale and therefore is tax free according to 8:2 inkomstskattelagen. This makes the calculations a bit complicated. Basically, a hypothetical sale is calculated in order to account for costs that your ex-sambo will eventually have if he sells the apartment in the future. When doing this calculation, the real estate broker commission and latent tax of 22% are deducted from the price. This has been confirmed by case law. So the answer is yes, you need to compensate him now for the commission as well as the latent tax. You can do this by deducting these costs from the market value of your share of the apartment.

It is recommended that you write a bodelningsavtal which is a contract stipulating how the bodelning will be done. There you can specify the division percentages that will be used (whether it be 48/52 or 50/50) and that you have agreed to deduct certain costs to reach a net sum of what your ex-sambo will pay you.

Lawline has an avtalstjänst (contract service) that can help you to write a bodelningsavtal, see here.

Best regards,

You Jung Lee Törnqvist
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Kommentarer:
Hello Jung Lee, Thank you for your fast answer! Last question regarding point (2). In case my ex-sambo is planning to sell the apartment in the future (when he will be 100% owner), and that he will use the earned profit to re-invest in property, he won't be subjected to pay the 22% of taxes on profits. Does it imply in any case that I have to pay him now my 22% taxes on profit even though he won't need to pay it in the future? Thank you!
2016-11-03 09:00
Thank you for your question. To clarify, the 22% latent tax is actually not something that is established in inkomstskattelagen but is rather a practice that has been developed via cases where parties couldn’t agree on how best to carry out a fair bodelning. The actual reavinstskatt (capital gains tax) percentage that applies when there is a real sale of the apartment is 30% according to 65:7 inkomstskattelagen. So, it is 30% and not 22% that your ex-sambo would actually have to pay in tax if there is a future sale. You are correct in pointing out that reavinstskatt can be postposed if your ex-sambo buys a replacement home. This is called uppskov (tax deferral), see capital 47 inkomstskattelagen. However, this does not affect the latent skatt because latent skatt is based on the concept that your ex-sambo sooner or later will have to pay taxes for his capital gains. Tax deferral only postpones the payment but does not completely take away the tax liability. In theory, the net taxes should not be affected by the fact that he postpones taxes. I would just like to add that bodelning is a private affair therefore you are free to come to any agreement that feels fair for you both. Therefore, if you both agree that it is not reasonable to include latent tax in your calculations, you should leave it out.
2016-11-03 11:39
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