Matrimonial Home Rules in Alberta: Who Can Stay, Sell or Block a Sale

If your relationship is struggling or has ended, you may wonder whether you can stay in the home, whether your partner can sell it, and whether it matters whose name is on the title.

In Alberta, the rules for possession of the family home are found mainly in the Family Property Act, with related rules in the Dower Act and the Law of Property Act. This article walks through them in plain language.

This article covers the law of Alberta.

Does your name on title matter?

Title records who owns the land. Alberta uses the Torrens system under the Land Titles Act, where the government holds the original titles and is responsible for the validity and security of registered land title information.

Being on title matters for ownership, but it is not the only thing that decides who may live in the home. A court can give a spouse or adult interdependent partner exclusive possession of the family home, direct that one be evicted, or restrain one from entering or attending at or near it. Those orders are about the family home, not only about who owns it.

If land is transferred to a husband and wife, they take according to the tenor of the transfer, so they are joint tenants only if the transfer says so. Otherwise co-owners take as tenants in common.

Exclusive possession orders

The court may attach conditions and time limits to a possession order. In deciding, it considers the availability of other accommodation within the means of both partners and the needs of any children living in the home.

A possession order takes effect despite a later order for partition and sale of the family home. Where the home is owned, the order may be registered with the Registrar of Land Titles, and after that the registered spouse may dispose of or encumber their interest only with the written consent of the spouse in possession.

There is an exception for a mobile home: a financing statement is registered in the Personal Property Registry instead of Land Titles. An order can also be made without notice to the other person if there is danger of injury to the applicant.

Dower Act consent for married owners

A married person may not dispose of the homestead unless the spouse consents in writing, or the court has dispensed with consent. A homestead must have the owner's residence on it, and is limited to one quarter section outside a city, town or village, or up to 4 adjoining lots in a block in a city, town or village.

• The court may dispense with consent in cases such as the spouse living apart, whereabouts unknown, or dower released by agreement, if it appears fair and reasonable.
• The Act does not apply where the married person owns the land as a joint tenant, tenant in common or partial owner with someone other than the spouse.
• Where only one person is on title and dower applies, Land Titles needs a dower option such as spousal consent, a dower affidavit, a release or a court order.

The Dower Act speaks of married persons, so whether it helps an unmarried partner depends on the facts and is worth confirming with a lawyer.

Co-owners, sale and protecting your position

A co-owner may apply to the court for an order ending the co-ownership. The court may order physical division, a sale with proceeds shared, or a sale of that person's interest to the other co-owners who want to buy it. Despite any agreement, the court may end co-ownership if continuing would cause undue hardship.

For spouses, ending co-ownership this way is not a disposition under the Dower Act, the land stops being a homestead as between the parties, and an order between two spouses dispenses with Dower Act consent.

If you start Family Property Act proceedings, you may file a certificate of lis pendens, and later instruments affecting the land are subject to your claim. A person claiming an interest in land under a will, trust, transfer, unregistered instrument or specified Alberta statute may also file a caveat.

What to do next

• Get a copy of the current title so you know exactly who is registered.
• Do not sign a transfer or consent until you understand what it does.
• Gather your mortgage, tax and utility records for the home.
• Ask a lawyer whether a possession order, lis pendens or caveat suits your situation.
• Check your mortgage terms with the lender before any transfer; this depends on the contract.

Frequently asked questions