Spouse's Consent to Sell Your Home in Alberta If Only You Are on Title

You bought the house yourself, or your name is the only one on the title, and now you want to sell. It is natural to think that you can sign and close without anyone else. In Alberta, if you are married, that is often not the case.

Alberta's Dower Act gives a spouse a say in the sale of the family home, whether or not the spouse is on title. This article explains how that works, what counts as a homestead, what happens if the rules are ignored, and what to do if consent is not possible.

This article covers the law of Alberta.

The basic rule: your spouse must consent

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 the name on title does not decide who must sign. If you are married and the property is your homestead, your spouse's consent is part of the sale. When a married seller sells the family home, the seller's lawyer must deal with the spouse's consent and the separate acknowledgment.

Consent sits alongside the usual land titles paperwork. 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 (DRR) form. 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. Spousal consent is one more item that has to be in order, so it helps to raise it with your lawyer at the start.

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.

If you are unsure whether your property is a homestead, for example because you own several lots or a larger rural parcel, a lawyer can confirm how the definition applies to you.

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 sale made without proper consent would be treated beyond the penalty depends on the facts, so it is worth confirming with a lawyer. That is why consent is dealt with before closing rather than afterward.

Other closing steps also run on a timetable. If there is a mortgage on the home, the Registrar discharges it when given a discharge in the prescribed form (Form 7) signed by the lender, and a seller's lawyer arranges for the lender to sign it so the mortgage comes off title when the sale closes. Since April 1, 2021, a Pending Registration Queue lets a transaction close once documents are received, before registration is complete. It is sensible to have the consent question settled well before closing.

When a court can dispense with consent

Sometimes consent is not realistic. A married owner can apply to the Court for an order dispensing with the spouse's consent. 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.

The Court may grant the order if it appears fair and reasonable under the circumstances. Meeting one of the grounds does not guarantee an order, so allow time for this step if you need it. How this applies depends on your situation, so it is worth confirming with a lawyer.

What to do next

Deal with spousal consent early, before you list or accept an offer if you can. Alberta.ca strongly suggests getting legal help with land titles forms, because they are legal documents with legal consequences, especially for ownership changes. If there is a mortgage, a seller's lawyer arranges for the lender to sign the discharge so the mortgage comes off title when the sale closes.

• Confirm whether you are married and whether the property is your homestead.
• Talk to your spouse about the sale and the written consent early.
• If consent is not possible, ask a lawyer whether one of the court grounds fits your situation.
• Tell your seller's lawyer about any earlier dower release agreement or other homesteads.
• Check with a lawyer for any recent amendments to the Dower Act before you rely on this overview.

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