The Homesteads Act in Manitoba: Does It Protect Your Home?

If your spouse owns the house and your name is not on the title, you may worry that you have no say in what happens to it. In Manitoba, The Homesteads Act gives certain protections to a spouse or common-law partner who lives in the family home.

This article explains what those protections are, when they apply, and what you can do to guard them. It is general information, and the details of your situation matter.

This article covers the law of Manitoba.

Who the Act covers

The Act applies to all married persons and to persons in common-law relationships. The rights exist whether or not the non-owner is on title.

For this Act, a common-law partner is a person who registered under The Vital Statistics Act or who cohabited in a conjugal relationship for at least three years. The Family Law Act uses its own definition of a common-law partner, which also includes partners who have cohabited for at least one year if they are together the parents of a child. How these definitions apply to a particular homestead is worth confirming with a lawyer.

Common-law partners are also covered by the equal-sharing accounting under The Family Property Act once they meet the definition, meaning they registered or cohabited for three years. Couples who had cohabited three years and separated before section 2.1 of that Act came into force are generally excluded, unless they resumed cohabiting and registered or cohabited at least 90 days after that date.

What counts as a homestead

A homestead includes a city, town or village residence occupied by the owner and the owner's spouse or common-law partner as their home. Rural residences and condominium units are covered under separate clauses.

The Act also refers to other provisions and exceptions, so whether a specific property qualifies can depend on its type and how it is used. If your home is rural, a condominium, or part of a larger property, ask a lawyer to confirm.

What rights you have

• Consent to sell or transfer: an owner may not dispose of the homestead during the owner's lifetime unless the spouse or common-law partner consents in writing in the prescribed form.
• Registration of consent: that consent is registered in the land titles office.
• Homestead notice: a spouse or common-law partner with homestead rights may register a notice in the land titles office, and registration of a disposition is blocked until the notice is vacated or discharged.
• Rights on death: a surviving spouse or common-law partner with homestead rights is entitled to a life estate in the homestead, subject to certain exceptions in the Act.

A life estate is a right to live in and use the property for your lifetime. It is not the same as owning the property outright.

Giving up homestead rights

A spouse may release their rights in writing in the prescribed form for valuable consideration. After that, the land ceases to be that spouse's homestead.

Because a release ends a protection, do not sign one without understanding what you are getting in return. Ask what other claims you may have, including a share of property under The Family Property Act, which treats the family home as a family asset subject to equal sharing in the usual case. The Homesteads Act protects against a sale or transfer, while the property division rules deal with how value is shared. They work alongside each other.

If you and your partner have a spousal agreement or common-law relationship agreement, The Family Property Act does not apply to an asset the agreement disposes of or makes inapplicable, but assets the agreement does not address remain subject to the Act. Read the exact wording of any agreement carefully before you sign.

What to do next

• Find out who is on title to the home, using a land titles search.
• Check whether a homestead notice is already registered.
• Consider registering a homestead notice if you have homestead rights and are worried about a sale or transfer.
• Do not sign a consent or release you do not fully understand.
• Keep an eye on property claim deadlines, which can be as short as 60 days after a divorce takes effect.
• Speak with a lawyer about your home, your title and your options.

Property claims under The Family Property Act are made to the Court of King's Bench, and the applicant must file and serve a sworn statement of assets and liabilities. For common-law partners, the time limit is 60 days from registration of the dissolution if the relationship was registered, or three years from when they began to live separate and apart if it was not.

If there is any risk to your safety at home, a protection order under The Domestic Violence and Stalking Act can include removal of the respondent from the residence. That is a separate process from homestead rights.

Frequently asked questions