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If you own a home, or are thinking about purchasing a home in Manitoba, understanding The Homesteads Act is important so that you know what rights spouses or common law partners have.
It is also important to know about the scope of these rights. Specifically, when the owner of a property wants to sell, gift, or dispose of that property, what rights will their non-owning spouse have? What about if you are going through a separation or divorce?
What is The Homesteads Act?
The Homesteads Act is legislation in Manitoba designed to protect the rights of spouses or common-law partners in relation to the family home. This Act ensures that one partner cannot unilaterally sell, mortgage, or otherwise dispose of the “homestead” without the consent of the other partner. Essentially, it helps to secure a place to live for both partners, regardless of who holds title to the property.
Homestead legislation in Canada arose from an old English concept known as “Dower”. Historically, dower rights were designed to protect widows from being homeless after their husbands’ deaths during a time when women could not own property. These rights allowed a widow to use her deceased husband’s real estate for life, preventing the sale of the family home. Over time, dower rights have been modernized to apply equally to both husbands and wives. While this concept is extremely outdated, the principles have been modernized to apply equally to both husbands and wives. More specifically, modern legislation has expanded to offer further protection for any form of disposition, such as selling the homestead without the consent of the non-owning spouse.
What are the key features of The Homesteads Act or homestead rights?
There are 4 main features of The Homesteads Act:
Consent Requirements – One of the core features of The Homesteads Act is the requirement of consent. If an owning spouse wants to sell, dispose, or mortgage your home, they must obtain the written consent of their spouse or common-law partner even though they are not a registered owner. This consent must be given freely and voluntarily, ensuring that no one is coerced into giving up their home. However, there are some situations where the consent requirement can be waived. This applies if the non-owning spouse has waived or released their homestead rights, if the disposition of the family home is made in favour of the spouse, if the spouse is a registered co-owner of the homestead, or if the court has granted an order.
A Life Interest – If the owning spouse dies, the non-owning spouse or common-law partner is entitled to continue living in the family home for the rest of his or her life, even if the owner’s will leaves the home to someone else. This feature is also directly related to the consent requirements.
Homestead Designation – A homestead is defined as the home where the married or common-law couple lives. As a result, an individual cannot claim a homestead right in more than one property. More importantly, homestead rights can also apply to family homes situated on farms and include up to 320 acres of land in rural areas in Manitoba. In contrast, Saskatchewan’s Homestead legislation only covers up to 160 acres. This designation is important because it identifies the property that is protected under The Homesteads Act.
Protection From Creditors – The Act provides some protection from creditors by ensuring that the family home cannot be seized to pay off debts unless both partners consent.
Who qualifies for rights under The Homesteads Act?
Under The Homesteads Act, a non-owning married or common-law partner obtains a homestead right in the family home. In order to qualify as a common-law partner within the Act, a couple must have either registered their relationship with the Vital Statistics Agency, or they must have cohabitated in a conjugal relationship for at least 3 years. In contrast, Saskatchewan’s homestead legislation considers people to be in a common-law relationship after living together for 2 years, instead of 3.
There can only be one set of homestead rights at a time. As a result, if there is a previous spouse or common-law partner that has a homestead interest in a home, they must be settled before another homestead interest can be enforced.
For further protection as a non-owning spouse or a common-law partner, you are also able to register a Homestead Notice with the land titles office to ensure your homestead rights are documented.
How to ensure compliance with The Homesteads Act
To comply with the Homesteads Act, here are some steps homeowners in Manitoba should follow:
Discuss Decisions – Always discuss any potential sale, mortgage, or disposition (including future dispositions in a Will) of the family home with your partner to ensure you are both in agreement.
Legal Advice – Seek legal advice to understand your rights and obligations under The Homesteads Act. A lawyer can provide guidance and ensure that all legal requirements are met.
Documentation – Ensure that all required consents are documented in writing. This documentation is necessary for any legal transactions involving your home. Most real estate documents include clauses surrounding consent for non-owning spouses that have homestead rights.
Conclusion
The Homesteads Act is a vital piece of legislation that helps protect the rights and interests of spouses and common-law partners in Manitoba. While the Act does not give any rights to ownership, by understanding and adhering to these laws, you can ensure that your family home remains a place of security and stability. If you have any questions about The Homesteads Act, need legal assistance, or think it may apply to your situation, feel free to contact our firm for advice and support.