What is Dower?
Dower rights are meant to protect the property interests of a spouse who is not legally registered on title. Originally, dower rights were created to ensure that widows could continue to use the family home after their husband’s death, even if they were not the registered property owners.
When does the Dower Act apply?
In Alberta, if you are married and own property (that is registered in your name alone), you are required to obtain your spouse’s consent if you choose to mortgage, sell or lease the property for longer than 3 years. Dower rights protect the interests of a spouse of a property owner, ensuring that the property is not sold or burdened without their consent.
Why do you need to sign a Dower Consent?
To avoid legal sanctions that come from neglecting dower rights, signing a dower consent during a sale transaction or signing a dower release, are potential solutions. Signing a dower consent is also necessary in some circumstances, to obtain a mortgage, because the mortgagers try to avoid circumstances where the absence of consent bars them from enforcing their terms.
Penalties if you do not fulfill the Dower Act requirements
If the house is sold without the spouse’s consent, the Dower Act (Act) contains enforcement mechanisms. The owner spouse may be liable to pay their spouse half of the value of the sale, or half of the value of the property at the time of the disposition, according to section 11(2) of the Act. Actions may be brought against the executors of the deceased spouse’s estate, according to section 11(3). If the owner spouse cannot pay, relief is granted to the non-owner spouse through the Alberta General Revenue Fund. The owner spouse who sells the homestead without obtaining consent, may also face criminal sanctions.
History of Dower
Dower is an ancient common law concept assigning a husband’s property to his widow after his death. Traditionally, the widow would be granted a life tenancy in 1/3 of all the lands that had been owned by her husband, at any time during their marriage. This entitlement was unrelated to the actual needs of the woman, but common law dower rights were deemed necessary to protect widows from their husband’s creditors. A wife’s dower rights would run with the land unless she consented to the transfer of the land. In other words, if the husband sold the land without the wife giving up her dower rights, the wife’s dower interest remained in the land, regardless of whether the next purchaser had notice of the dower claim. There is also the reciprocal form of the concept for males, called curtesy, where widowers received life estates in land that their wives had received through inheritance.
Traditional dower and curtesy rules were eliminated for their inconsistency, and because women gained progressive property rights. Also, the traditional rules were considered unfair to purchasers, who were disadvantaged by interests that were not disclosed on land titles. This form of common law dower is now a thing of the past but there are remnants of this concept exist in the modern-day Dower Act.
So today, homestead legislation creates a more reasonable, dower-like interest. In these statutes, the owner spouse no longer has the right to dispose of the homestead without the consent of the non-owner spouse, and the non-owner spouse gets a life estate interest in the homestead upon the death of the owner spouse, regardless of what is written in the will. The “homestead” is the parcel on which the owner’s residence is located and is maximum one-quarter section in size. The Alberta Dower Act is a form of homestead legislation.
Specific Rules in the Alberta Dower Act
The main provisions in the Alberta Dower Act include the requirement of spousal consent to sell or burden the homestead, and that the life estate in the homestead is granted to the surviving spouse. If there is more than one homestead, the surviving spouse gets to choose which property they want. Today in Alberta, dower interests are only existent as provided in the Dower Act.
According to the Dower Act, as stated above, the spouse who is not on title must consent to any disposition of the land, which includes selling or mortgaging the property, as stated in section 2 of the Act. Any disposition through the will, as a testamentary gift for example, is postponed until after the death of the widow/widower.
The Dower Act does not apply if the couple co-owns the property; for co-owners, consent is not necessary for dispositions, which is stated in section 25(2) of the Act. It is important to note that according to section 20(1) of the Alberta Law of Property Act, a termination co-ownership is not considered a disposition under the Dower Act.
Spousal consent must be filed with the Land Titles Office. Consent should include acknowledgement of the rights that the spouse is relinquishing. Several different forms of “consent” can be accepted: attached to an instrument of sale (“consent”), sworn before an attorney (“release”), or the object of a contract (“agreement releasing dower rights”) (sec 4-5, 7-9).
The consent requirement may not apply in specific circumstances. Section 10(1) of the Dower Act outlines potential circumstances that may be considered including: if the spouses are living apart, or the spouse has not lived in Alberta since the marriage, or the spouse’s location is unknown. However, if unsure about whether these circumstances would apply, it is advisable to sign the dower consent to avoid issues and penalties.
This article is provided for general information purposes only and does not constitute legal or other professional advice. You are advised to contact a Real Estate Lawyer regarding any specific legal issues. You may reach us at 780-473-7779.