The Dower Act – A small crisis

In 1922, the Alberta Government faced a small crisis. Wealthy homeowners, who were almost always men at the time, held property exclusively in their name. Their wives and children had no legal right to the title of the property.

The imaginary Mr. Smith was tired of having a wife and children. He was tired of the drain on his resources that he considered them to be, and thought that perhaps he would try starting anew in another city, in another province – perhaps even in another country. Mr. Smith decided he would sell his home, and move elsewhere! He simply wouldn’t tell the buyer of the home that Mrs. Smith and his children were still living in the property; after all, the new owner could just have them removed! They have no legal right to reside there, as the title was held exclusively in Mr. Smith’s name. Mr. Smith proceeded to tell his wife he was going on a ‘business trip’ and sold the house, and left with the proceeds. A month later, on possession date, the new owner arrived, and was stunned to find that there was a woman and children occupying the home! However, because they did not have a legal right to the title of the property, in any form, they were expelled from the home, and left to live on the streets. Mr. Smith was nowhere to be found.

This was a sad, and all too common story playing out in the 1920’s in Alberta. The wives and children did not have the economic ability to challenge any of these events, but the result was that they were living on the streets, or suddenly homeless, with no protections of any kind. The Albertan government knew that there had to be some kind of solution, and they turned to what they now call the “Dower Act”, currently cited as RSA 2000, c D-15 (×65).

Under the Dower Act, if the spouse of a homeowner is not registered on to title, they now have to consent to the sale of the property in question. In other words, if the Dower Act had been in effect when our imaginary Mr. Smith had sold his home, Mrs. Smith would have also had to appear in the lawyers office, have it explained to her that the home was being sold, and then agree that the home could be sold. If she did not agree, then the property would not be allowed to be sold. The lawyer is to seek this informed consent from the spouse in such a way that the registered owner is not in the room, and can seek the information from the spouse without fear of retribution. This is designed to protect the interests of the spouse, and to ensure with as much certainty as possible, that the information sought is protected from tampering by the selling spouse.

It is important to note that the Dower Act does not apply to everyone equally; it does not, for example, apply to Adult Interdependent Partnerships, nor does it apply to common-law relationships. Therefore, the protections under the Dower Act are only available to those defined as “spouses” under the Act itself.

When selling a property, it is crucial that your lawyer review and ensure that if the Dower Act applies, that it is dealt with accordingly, such that there are no issues or holdups with the Land Titles Office, in relation to registration of your sale documents. Make sure to contact Greg von Euw, at Alloy LLP, in order to see if the Dower Act applies to the sale of your property, and that if it does, he can help.

Tune in next time for more tips on buying or selling real estate, from Greg von Euw, at Alloy LLP!