Three criteria must be met:
- One person on title, and
- That person is legally married, and
- Either of the married couple has lived at the property since marriage.
Whether a person is legally married is important, as dower rights do not apply to common-law partners. Equally important is knowing if either spouse has “lived” at the property since the marriage. Jeff Kahane, with Kahane Law, shares, "Even if one person has slept overnight in the property, there are situations where that’s deemed to be that they’ve lived in there.”
HOT TIP: If a person states they are single, the listing agent needs to clarify what kind of “single”:
-
Single (not married)
-
Single (married and free to date other people)
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Single (married but separated for 20 years)
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Single (almost divorced but still legally married)
What needs to happen if Dower Rights apply?
Listing stage
1. Pull the title to know who is listed on the title as the owner and review the registered instruments to see if a Dower Release is registered.
- Verify if the Dower Release on the title is from the current spouse and not left over from a previous marriage.
- If you find a Dower Release on the title, the client should get a legal opinion confirming that they can sell.
2. If only one person is on the title, pay attention to the questions in the Dower Consent section of the listing agreement, section 7 in the Common Law form, or section 8 in the Designated Agency form.
3. If the titled owner answers ‘Yes’ to both Dower Consent questions, the non-owner spouse must sign the Exclusive Seller Representation Agreement Dower Consent and Acknowledgement form.
- Because the Dower Consent and Acknowledgement needs to be signed by a commissioner for oaths or notary public, getting the non-titled spouse to visit a lawyer to review the document together and complete it is best practice
HOT TIP: If you’ve verified that the non-titled spouse had a Dower Release registered on the title at the time of listing, periodically verify that the instrument is still on the title. Be cautious if you think there might be relationship problems between the spouses. Dower Releases can be revoked at any time and removed from the title. If this happens, talk to a lawyer.
Purchase stage
1. Listing Agents must pay attention to 7.1(b) of the Residential Purchase Contract and ensure this date is filled in.
2. The non-titled spouse must complete the Purchase Contract Dower Consent and Acknowledgement form and provide it to the Buyer by the date on the purchase contract.
a. If a Dower Release is on title, the client should consult a lawyer to decide the best way forward, as Dower Releases still involve some risk at the purchase stage.
Frequently asked question
Q: Why does the non-titled spouse need to sign the Dower Consent and Acknowledgement at both the listing and sale stages?
A: “Anytime a titled married party disposes of an interest in the land, the non-titled spouse has to give permission for this; it is because both those contracts [listing and purchase] transmit an interest in the property," says Jeff Kahane.
Want to know more about Dower Release and Dower Consent and Acknowledgement?
Check out this blog post on Jeff Kahane’s website: Releasing the rights a spouse has in a property.
Or check out this CREB® webinar featuring Jeff Kahane and family lawyer Farrah Kohorst: Separation, divorce and real estate.
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