The year is 1917, and the Canadian Armed Forces deployed the most significant force outside Canada ever at the battle of Vimy Ridge. In the same year, the NHL formed in Montreal, and the first-ever Pulitzer Prize was awarded in New York City. In Alberta, the Dower Act was signed into law to protect a non-owner spouse from being dispossessed of the family home without consent. Although altered slightly in 1948, the Dower Act has remained the same in principle for over 100 years. Familiar with residential REALTORS®, the Dower Act also applies to some commercial and rural properties.
The Dower Act always refers to homestead property. It clarifies what “homestead” means since it is uncommon in modern vernacular. The homestead is broadly defined as the parcel of land with an occupied dwelling house as the owner’s residence but includes the concept of either spouse residing past or present in the dwelling. Any property in Alberta where a legally married person is the only owner registered on title and either the title holder or their spouse has ever lived in a dwelling on the property. Although traditionally, this has not been considered a commercial property issue or applicable to a rural property, changes in consumer patterns in the real estate industry have shifted this into a realm of possibility.
Commercial Properties and Dower
Dower rights on homestead property don’t feel like they would fit into a commercial context since no one lives in a warehouse or office tower, and it wouldn’t be considered a homestead, right? Well, true, but the introduction and popularity of mixed-use commercial properties have moved the line. These are the properties in hip urban neighbourhoods where a main floor level has a cute little retail shop while the upper level of the commercial condo has a dwelling unit. The idea is that an individual running the store can live above it and have the world’s shortest commute! However, what could be overlooked in these situations by commercial REALTORS® is that that dwelling unit could be considered a homestead under the Dower Act and may require dower rights to be addressed. For this reason, AREA has added a dower section to the commercial listing and purchase contracts to remind commercial REALTORS® of this potential issue.
Rural Properties and Dower
Because the Dower Act refers to a “dwelling house” on the property, non-owner dower rights would generally not apply to raw land. However, the act was written in a time of dominant agrarian culture where many families were farm families. At least the home quarter was intended to be protected, so the act refers to the homestead applying to “not more than one” quarter section of land.” Additionally, modern rural properties can be fabulous parcels of all sizes with stunning homes and even some commercial activities like bee-keeping or small herd cattle production that would fall under the Dower Act as homestead properties. If the parcel has a dwelling, one name on the title, and that owner is married, then Dower likely applies.
I am not a lawyer, and this article should not be considered legal advice on Dower. Still, the issues surrounding Dower rights are material to the trade of real property and, when applicable, can mess up everyone’s day if not dealt with upfront. Without limiting your thought process to property type, if there is a dwelling, one name on the title, and that person is married, then Dower rights probably apply. At the very least, a real estate broker or lawyer should be consulted on proceeding correctly.
Provincial Practice Advisor
Bryan has many years of experience in the real estate industry including over 10 years as a former broker in the Edmonton Region.
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