Oct. 28, 2024 | CREB

Dower Rights 101: What you need to know about real estate law in Alberta

In Alberta, real estate transactions can be complex, especially when dower rights come into play. 

These rights are critical legal protections designed to safeguard the interests of a spouse in a matrimonial home. Understanding dower rights is essential whether you're buying, selling, or mortgaging a property.

What are dower rights?

Dower rights are legal protections granted to the spouse of a registered homeowner in Alberta.

These rights ensure that the spouse who is not listed on the property title, also known as the non-titled spouse, has a say in any major decisions regarding the property.

Under the Dower Act, this means the non-titled spouse must provide formal consent before any disposition of the property occurs. This includes selling the home, refinancing, or taking out a mortgage.

When are dower rights triggered?

To understand whether dower rights apply in a given situation, it is best to proceed with a specific line of questioning:

Is there only one person on title?

• Yes: Dower rights apply.
• No: Dower rights do not apply, regardless of marital status.

Is the person on title married?

• Yes: Dower rights apply. However, this only applies to legally married spouses; common-law partners are excluded from dower protections.
• No: Dower rights do not apply.

Has either spouse, on title and not on title, lived in the property since the time of their marriage?

• Yes: Dower rights apply. Even something as simple as staying overnight in the home can trigger these rights.
• No: Dower rights do not apply.

What to do when dower rights apply

When dower rights are triggered, the spouse not on the title must provide dower consent before any legal disposition of the property can proceed. This applies to the following situations:

• Listing a property for sale: A dower consent is required because many listing contracts include clauses that allow commissions to be secured by caveat against the property title.
• Signing a purchase agreement: Any agreement to sell the property requires spousal consent.
• Obtaining a mortgage: Before a mortgage can be finalized, dower consent must be given.
• Transfer of land: When the property title is being transferred, dower consent is needed.

Dower rights and separation

If you are in the process of separation but are not yet divorced, with a final divorce judgment, dower rights continue to apply until there is a final divorce judgment.

In these cases, it is essential to consult with a family or divorce lawyer familiar with the case. It is best to resolve all issues that may arise regarding dower rights before entering into any real estate contracts.

What is a dower release?

A dower release is a legal document that allows a spouse to relinquish their dower rights.

This document must be signed in front of a lawyer, and the spouse giving up their rights must do so voluntarily, without any pressure or duress. Once a dower release is signed, the property can be sold, mortgaged, or transferred without requiring further consent from the releasing spouse.

However, it's important to remember that a dower release can be revoked. Always check the title for any pending changes to a dower release before proceeding with any transaction.

Conclusion

Dower rights are a vital component of Alberta real estate law, protecting the interests of spouses in matrimonial homes. Understanding when these rights apply and how to navigate them can prevent potential legal pitfalls in real estate transactions.

If you are unsure how dower rights might affect your property dealings, consult with a lawyer to ensure compliance with the Dower Act.

For further assistance, call Kahane Law Office at 403-225-8810 to speak with one of our experienced real estate or family law lawyers.

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