Selling Your Alberta Home When Only You Are on Title: Dower Consent

You bought the house in your name alone, and your spouse was never on title. It is natural to assume you can sell it without anyone else signing. In Alberta, that assumption can cause real trouble for a married seller.

The Dower Act gives a spouse a protected interest in the family home, whether or not their name is on the land titles record. This article explains what the Act requires, what counts as a homestead, when a court can waive consent, and how the sale is usually handled.

This article covers the law of Alberta.

The basic rule under the Dower Act

A married person cannot dispose of the homestead during the lifetime of either spouse unless the spouse consents in writing, or the Court has made an order dispensing with that consent. This applies even if only one spouse is on title.

In practice, this means a married seller who owns the family home alone still needs their spouse's written consent. The seller's lawyer must deal with that consent and the separate acknowledgment when a married seller sells the family home.

What counts as a homestead

The Dower Act defines the homestead as a parcel of land containing the owner's residence. The size depends on where the land is.

Whether a particular property is a homestead depends on the facts, so it is worth confirming with a lawyer if your situation is unusual, such as a large rural parcel.

What happens if you sell without consent

Disposing of the homestead without the required spousal consent is an offence. The maximum penalty is a fine of $1,000 or two years' imprisonment.

How a missing consent would affect the buyer and your closing depends on your situation, so it is worth confirming with a lawyer before you list the home. If you cannot get consent, the Act also allows a married owner to apply to the Court for an order dispensing with it, as explained below.

When the Court can dispense with consent

If you cannot get your spouse's consent, a married owner can apply to the Court for an order dispensing with it under section 10 of the Dower Act. The grounds include:

• The spouses are living apart.
• The spouse has not lived in Alberta since the marriage.
• The spouse's whereabouts are unknown.
• The owner holds two or more homesteads.
• There is a prior dower release agreement.
• The spouse is mentally incompetent and has no legal decision-maker.

Meeting one of these grounds does not guarantee an order. The Court may grant it if it appears fair and reasonable under the circumstances. Because this is a court application, get legal advice before relying on it for a closing date.

How the sale is handled and what to do next

Alberta uses the Torrens system under the Land Titles Act. Land is transferred by registering an Application for Transfer of Land, and every document submitted for registration needs a Document Registration Request form. Alberta.ca strongly suggests getting legal help with these forms because they are legal documents with legal consequences, especially for ownership changes. If the seller is an estate, a transfer to a personal representative is a transmission of land and uses its own form rather than the Application for Transfer of Land.

If there is a mortgage, the lender signs a discharge in the prescribed form (Form 7) so it comes off title when the sale closes. Alberta.ca offers separate forms for a full discharge and a partial discharge. Since the Land Titles Act amendments that took effect April 1, 2021, a Pending Registration Queue lets a transaction close once documents are received, before registration is complete. Your lawyer coordinates this together with the spousal consent.

Selling a home also has a tax side. You report the sale of a principal residence on Schedule 3 of your return, and since 2016 the CRA allows the exemption only if the sale and designation are reported on the return. You can designate only one home as your family's principal residence for each year, although in the year you sell one home and buy another, the "plus 1" rule lets both be treated as eligible for the exemption if you were resident in Canada in the year the new property was purchased. How this applies depends on your situation, so it is worth confirming with an accountant.

• Confirm whether you are married and whether the property is your homestead.
• Talk to your spouse early about signing the written consent.
• If consent is not possible, ask a lawyer whether one of the section 10 grounds fits your situation.
• Gather your title documents and mortgage details.
• Contact a lawyer before you list or accept an offer.

Frequently asked questions