Dower rights have been around for nearly 100 years. Today, Dower rights protect the spouse of a registered owner of real property. In simple wording, when the spouse is not registered on the title as owner of the house, this spouse must give consent to sell it.
When you have lived in a property but only your spouse is on title, Dower rights apply. For example, your spouse bought the property some years ago. A few years later you meet, you get married and you move into the house. Dower rights apply when both lived in the property since their marriage. If the spouse never lived in the property, Dower does not apply. Dower rights only apply when you are married, not when you live in a common-law relationship or if you are divorced.
Dower rights only apply when you are married, not when you live in a common-law relationship
Let’s look at this issue in practice. You buy a house from a married couple and only one owner is on the title. The owner on title signs all the documents to sell. Two weeks before possession, you (as the buyer) go to your lawyer to finalize the paperwork. Then it appears that the owner is married and it turns out that the spouse is not on title. But because the spouse also lives, or has lived, in the house, the spouse is allowed to refuse the sale of the house. In other words, you as the buyer can’t buy the house. The spouse who is not on title must sign an affidavit that he or she agrees to sell the property.
This is all laid out in point 7 of the contract (Sept. 2016 contract from the Alberta Real Estate Association):
The seller represents and warrants to the buyer that no spouse has dower rights in the Property, other than as shown by:
(a) the non-owner spouse’s signature on this contract; and
(b) the seller providing a completed Dower Consent and Acknowledgment form to be attached to and form part of this contract on or before ___________________________________, 20_______.
If the seller fails to provide the completed Dower Consent and Acknowledgment form, the buyer may void this contract at the buyer’s option by giving the seller written notice.
The spouse who is not on title must sign an affidavit that he or she agrees to sell the property
A buying agent cannot take for granted that the selling agent has asked the right questions and should ensure this by asking the selling agent if Dower rights apply. First, a buying agent should pull title (just as the selling agent should pull title) to see whose names are on title. If there is only one name on title of the house, it should be confirmed if the seller is married. If the answer is yes, the seller is married and the spouse also resided in the property, then Dower rights apply. The other half of the married couple must fill out an affidavit and confirm and allow the sale of the house.
For a selling realtor, it is important to ask the right questions while filling out the sales contract. The worst case scenario is that everything is signed and at closing it appears that the seller on title was not allowed to sell because the spouse didn’t give consent and is not planning on doing so.
The Alberta Queen’s Printer has published more than 20 pages with the details on the Dower act.
The above is general information only. It is not meant to be legal advice. Always seek council if you have questions.