Sole Ownership
With sole ownership, there is only one individual (or company) registered as the owner on the title of the property. In this case, the sole owner holds the
rights to the land. However, if the sole owner is married, there are spousal rights to the property that must be considered. Spousal rights are referred to
as Dower rights and are established by the Dower Act. There are 3 criteria to consider in this regard:
Is the owner of the property the only name on the Certificate of Title?
Is the owner of the property legally married?
Has either spouse lived in the property since the time of the marriage?
Dower Rights
The Dower Act protects a surviving spouse’s interests in the family homestead (matrimonial home) upon the death of the other spouse. The Dower Act grants certain property rights or Dower rights to the untitled spouse (the spouse whose name is not on the Certificate of Title) regarding the matrimonial residence. Dower rights include the right of a spouse to inherit a life interest (life estate) in the homestead. Dower rights apply when one spouse is the sole registered owner (e.g. the one spouse on title). The untitled spouse could be either the husband or the wife, however Dower does not apply to common law relationships (unmarried individuals living together).
Dower rights give the untitled spouse the ability to prevent the disposal of the matrimonial residence by the titled spouse. This includes the sale, lease or mortgaging of the property. Consent of the untitled spouse must be acquired in writing in the prescribed form before a sale or other disposal of the matrimonial residence may proceed. Dower rights can also be waived by the untitled spouse by signing a legal and properly executed release. These documents are prepared by a lawyer, signed by the parties and submitted tothe Land Titles Office for registration. It may appear on the Certificate of Title as a Dower Release. This allows the titled spouse the ability to do with the property as he or she wishes.
Dower rights may apply to any property used as a matrimonial residence by the spouses during their marriage. This may even apply if one of the parties already owned the property and brought it into the marriage. It may also apply if the residence is no longer the matrimonial home but still in the possession of one or both spouses (e.g. used as a revenue or investment property). Real estate professionals must always read the Certificate of Title for the properties involved in their transactions. If a seller is married (or has been married but no Dower Release is on title) and that individual is the only name on title, ask him or her questions regarding the circumstance. When listing a property for sale or lease, real estate professionals should know if Dower rights apply. If in doubt whether or not Dower rights apply, real estate professionals should ask the owner to seek legal advice.