Introduction
Real estate transactions in Alberta involve not only financial and procedural considerations but also legal obligations that may not always be apparent to property owners or buyers. One such obligation arises from Dower Rights, a unique legal provision under the Alberta Dower Act. These rights can significantly affect how and when a married person can sell, mortgage, or lease a property if their spouse is not listed on the property title.
What Are Dower Rights?
Dower Rights provide a life interest to a non-titled spouse—meaning the spouse who is legally married to the titleholder but is not named on the property title. These rights are intended to protect one spouse from being dispossessed or displaced from the family home without their consent. Under Alberta law, a married person cannot legally sell, mortgage, or lease a property for more than three years without obtaining the written consent of their non-titled spouse, provided the property qualifies as a matrimonial home under the Dower Act.
Legal Foundation: The Alberta Dower Act
The Alberta Dower Act is a provincial statute designed to protect the non-owning spouse’s right to remain in or benefit from the matrimonial home. Rooted in historical English common law, the Act ensures fairness in how property rights are exercised within a legal marriage. The Dower Act applies only in specific situations:
- The spouses are legally married (not just common-law).
- Only one spouse holds the legal title to the property.
- The couple has resided together in the home during their marriage.
- The property is located in Alberta.
When Do Dower Rights Apply?
Dower Rights apply in situations involving:
1. Selling the Property
- A Dower Consent signed by the non-titled spouse.
- A Dower Affidavit sworn by the titled spouse.
These documents must be registered with the Alberta Land Titles Office.
2. Mortgaging or Refinancing
Lenders require Dower documentation before approving mortgages or refinancing requests for properties where only one spouse is listed on title.
3. Leasing the Property for More Than 3 Years
A long-term lease is treated similarly to a sale or mortgage in that it could affect the spouse’s occupancy rights. In such cases, Dower Consent is also required.
Dower Consent and Affidavit: Legal Requirements
Two documents are central to complying with the Dower Act:
Dower Consent
- Signed by the non-titled spouse before a lawyer not representing the titled spouse.
- Voluntarily given, with full understanding of the implications.
- Accompanied by a certificate of independent legal advice from the witnessing lawyer.
Dower Affidavit
This sworn statement by the titled spouse must confirm:
- Whether they have a spouse.
- Whether they have resided in the property together during the marriage.
- Whether the property is subject to Dower Rights.
These documents are mandatory for registration of any disposition at the Land Titles Office.
Exceptions: When Dower Rights Do Not Apply
- Both spouses are joint owners of the property.
- The parties are common-law partners, not legally married.
- The property was never used as a matrimonial home.
- The marriage has ended in legal divorce or death of the non-titled spouse.
- The property is commercial, rental, or investment real estate, not used as a primary residence by both spouses.
What Happens After Divorce or Death?
Following Divorce
Dower Rights end upon the legal dissolution of marriage. If the parties are only separated, the rights remain in force until a divorce is finalized.
Upon the Death of the Titled Spouse
The non-titled surviving spouse may be entitled to a life estate, allowing them to live in the property for the remainder of their life, unless the right is waived through a will or settlement.
Consequences of Non-Compliance
- The transaction (sale or mortgage) may be deemed invalid.
- A caveat (legal claim) may be registered against the title by the non-consenting spouse.
- Potential for litigation or claims for damages.
- Delay in closing or rescission of contracts.
- Professional liability for real estate agents or lawyers who failed to identify or address Dower requirements.
The Role of Real Estate Professionals
- Confirm marital status during initial listing or purchase discussions.
- Ask whether the property was used as a matrimonial home.
- Recommend clients consult legal counsel when Dower Rights may apply.
- Ensure the proper Dower documentation is executed and submitted before proceeding with the transaction.
About the Author
Malvinder S. Tiwana is a Real Estate Associate with the Tiwana Real Estate Team, Calgary. With extensive experience in residential, rural, and commercial property transactions, Malvinder is committed to educating clients and delivering professional excellence in every real estate interaction.
