If you’re listing a property for an owner who is married, but only one spouse is named on the property title, there are some important things you must do.

Questions to ask

1. Ask whether the seller is legally married. Avoid taking “single” for a response, as that can mean different things to different people.
2. If the answer to the above is yes, ask whether either spouse has ever lived on the property being sold (even if for just one night).

If the seller answers yes to both questions, dower rights apply. This means the spouse not on the property title will need to provide consent to the transaction unless they have already released their dower rights, and even then, consent at the time of listing is still recommended.

Dower rights 101

The general principle for dower rights is that a spouse who is not on title may have a “life interest” or a right to live in that premises for their entire lifetime. Kahane Law explains dower rights come into effect following legal marriage and if “either of the two married people [have] lived in the property.” This requires that the not-titled spouse consent each time the spouse on title disposes of any interest in that property.

The penalty for disposing of an interest in property where dower rights exist without obtaining dower consent or release is the payment of half the market value of the property. The penalty is not half of the “equity” in the property, but rather the often much higher market value, so it is extremely important for members and their client(s) to ensure dower issues are carefully considered.

In general, there are two stages of a real estate transaction involving REALTORS^® where dower consent is required:

1. The Listing Agreement Stage
2. The Purchase Agreement Stage

Dower consent will be required when the actual transfer of land is signed at the lawyer’s office, but for the purpose of this article we will focus on the listing and purchase stages.

It is important for members to properly identify and advise their clients of the requirements of the Dower Act, since failure to obtain consent can be disastrous for a client and could also create problems for a member if enforcement of the listing agreement becomes necessary.

When a member determines a transaction requires dower consent, it is recommended they advise the client(s) of this fact in writing and request that the required consent be obtained before proceeding.

Industry insights

Sometimes members may see a dower release registered on title. It’s important in these cases to ensure the release is from the current spouse. Jeff Kahane, founder and managing partner for Kahane Law Office, says in some situations, clients who have been married and divorced multiple times might have a dower release registered on title, but from a previous spouse, not the current one.

Additionally, Dave De La Ronde, Real Estate Insurance Exchange’s (REIX) senior vice-president of claims and litigation, advises against relying on a release registered on title as it can be discharged at any time by the person that registered it on title. Don't be dependent on Dower Release, get Dower Consent. 

As always, we ask that members who require clarification on dower rights contact CREB^®’s member practice team for guidance and best practices.

Did you know?

Having the non-titled spouse named as a seller and signing the listing and purchase agreement does not replace dower consent, but it prevents a spouse from backing out. However, it might also give the non-titled spouse contractual rights they may not otherwise have, which could create liability for the agent.

The only place non-titled spouse names/signatures are necessary is in the signatures portion of the listing and purchase contract. The contracts do not say they have to be a party to the contract.

Pre-signing dower for the offer to purchase before there is a purchase agreement in place isn’t necessary or appropriate, as the non-titled spouse cannot release an interest given in a document that does not exist yet.

In Alberta, only certain people qualify as an officiating officer, which is required for dower consent, such as a lawyer, commissioner for oaths or notary public.