In this, the seventh instalment of our series with Dan Hawkwood, an Associate Lawyer at Beaumont Church LLP in Calgary, Dan discusses Dower and Dower rights — a married person’s right to occupy the dwelling where they and their spouse live, and which is owned solely in the name of their spouse. Dan comes from a long line of farmers and ranchers in the Calgary area and brings the experience of his rural upbringing to his practice. Dan is customer service driven and client focused adding to a great real estate experience.
The topic of Dower and Dower rights commonly arises in real estate property transactions. Quite simply, a Dower right is a married person’s right to occupy the dwelling where they and their spouse live, and which is owned solely in the name of their spouse.
Dower rights have been developing as part of the Common Law since the middle ages. Before women had the right to own real property, they were left at significant risk should their husband die. The husband could easily pass their property to another party, leaving their spouse with no home or source of income. Dower Rights developed to protect women and children from being rendered homeless and destitute in this circumstance by providing the wife with a “life estate” in a portion of the property of their deceased husband. A life estate gave the wife the right to use certain property of the deceased until they themselves passed away, or they chose to move or remarry. Often this would translate into continued use of the family home and surrounding lands. While the wife did not formally own the property, she at least had a place to live and a potential source of income to support themselves and their children.
A more modern iteration of this law was formally incorporated in Alberta in 1917 with the passage of the Dower Act. This legislation protects spouses who are married to the sole owner of the family home, by providing them with Dower rights to their “homestead”. A homestead is defined in the Act as the home where the married couple lived during their marriage. In a rural setting, these rights extend up to an entire quarter section. In a town or city, it is limited to four adjoining lots in one block. Should a married individual who is the sole owner of the “homestead” pass away, under the Dower Act their spouse receives a life estate in the “homestead”, and can choose to remain in the property as long as they wish.
Practically, the operation of the Dower Act requires that every time real property held in the name of one person alone is sold in Alberta, Dower rights must be considered. This usually involves one of two items which would be completed by the seller with the lawyer handling the transaction. Either:
- The owner of the property must swear an affidavit stating that they either are not married, or they and their spouse have never lived together in the property; or
- If they are married and lived in the property with their spouse, then the written consent of the spouse on the actual transfer of land document is required to complete the sale or transfer. This consent must be signed in front of a lawyer, and that lawyer must further indicate that they advised the spouse of their rights under the Dower Act and are aware of the nature of their consent.
It is not uncommon for the spouse of the seller to be working out of town or on vacation when the time comes to complete the real estate documents. If that spouse is unavailable to sign the correct dower consent forms with a lawyer, the sale can be put at serious risk. The best practice of any seller is to discuss dower with your realtor and/or lawyer at the beginning of your transaction, to ensure the correct steps are taken and documents are properly in place well before the closing date.
If you have any questions or require further clarity, contact your lawyer.
Dan Hawkwood is an Associate Lawyer at Beaumont Church LLP in Calgary.