Spousal Rights that you should be aware of in a Real Estate Purchase
Based on our experience, individuals purchasing Real Estate in Toronto know they need a lawyer to buy their home; however, they do not understand what their Real Estate lawyer actually does for them.
The Purchaser’s lawyer in a Residential Real Estate transaction ensures that the purchaser is getting what they agreed to pay for. For example, most purchasers agree to buy their home free of any encumbrances and with full right to undisturbed ownership of their property (i.e. no mortgage, no other owners registered on Title, no law suits that might affect Title etc.).
There are a plethora of issues that Purchasers require legal protection to avoid and one of them is the right of the Vendor’s spouse in his/her matrimonial home. The Family Law Act states that anyone who owns a matrimonial home cannot sell or mortgage it without the consent of their spouse. If the titled spouse attempts to do so the transaction can be set aside by an Ontario court.
Purchasers can protect their interests by hiring a Real Estate Lawyer to procure any of the following to ensure that their title is safe from the Vendor’s spouse:
A statement that the vendor does not have a spouse
A statement from the spouse consenting to the sale
A statement from the spouse affirming that the property in question is not ordinarily occupied as a family residence
A court order confirming that the property is released from the application of Part II of the Family Law Act
It should be noted that rights in the matrimonial home do not apply to Common Law spouses; although they might have a constructive trust claim.
If you are purchasing a home, or have any questions about spousal rights in Real Estate, contact us to help you ensure you get what you pay for when you purchase your home.