Is the Spousal Consent Required for Investment Properties?

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Commercial Real Estate Agent with RE/MAX West Realty Inc., Brokerage (Toronto)

couple fighting

Is the Spousal Consent Required for Investment Properties?

Ontario Real Estate Source

By Brian Madigan LL.B.

 

Question:

 

If a husband purchased a residential investment property, not his principal home, do we need the wife to sign the spousal consent when he sells?

 

 

Answer:

 

To some extent your question is vague.      

 

The concept of principal residence is a description under the Income Tax Act. There can only be one (generally, with certain exceptions).

 

Matrimonial home is a defined term under the Family Law Act and there can be more than one.

 

It may also include investment properties where the spouses live in one of the rental units.

 

Although the provision in the standard form OREA agreement for spousal consent is designed for the consent under the Family Law Act, it may also be used for other purposes, namely to evidence the consent of a non-titled beneficial spousal owner.

 

However, in such cases, it might be better to have that person sign as a contracting party than making the appropriate amendments to the consent provision.

 

The spousal consent would be required if the matrimonial home test was met for investment property, notwithstanding whether another property constituted the principal residence.

 

Also, there is the question of whether the spouse is a beneficial owner by reason of a trust obligation.

 

This would likely be unknown to third parties, but could be the subject of a dispute as between the spouses themselves.

Brian Madigan LL.B., Broker is an author and commentator on real estate matters, if you are interested in residential or commercial properties in Mississauga, Toronto or the GTA, you may contact him through Royal LePage Innovators Realty, Brokerage 905-796-8888
www.OntarioRealEstateSource.com

 

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Rainer
116,115
Brian Schulte
Allison James Estates & Homes - Sierra Vista, AZ
SFR, Sierra Vista, AZ

As far as I know and from past experience, you can buy a property without consent. You deal with that when you get home.

However you need a spouses signature to sell.

Unless you two have agreed to set up some other legal entities to buy and sell properties.

Oct 02, 2011 11:38 AM #1
Rainmaker
895,502
Brian Madigan
RE/MAX West Realty Inc., Brokerage (Toronto) - Toronto, ON
LL.B., Broker

Brian,

That used to be the same in Ontario, however, the law changed with the Family Law Act.

Also, there is the obligation upon real estate agents in Ontario to determine whether there are any other parties who might need to sign.

In this case, there could be a trust arising in favour of the non-titled spouse.

Brian

 

Oct 02, 2011 12:35 PM #2
Rainmaker
569,115
Chris Smith
Re/Max Chay Realty Inc., Brokerage - New Tecumseth, ON
South Simcoe, Caledon, King, Orangeville Real Esta

Brian, not at all the answer I thought of.  Luckily, I am not a lawyer, and do not pretend to be... so this would be a question I would have the sellers sort out with their lawyer to be safe.

Oct 02, 2011 10:56 PM #3
Rainmaker
895,502
Brian Madigan
RE/MAX West Realty Inc., Brokerage (Toronto) - Toronto, ON
LL.B., Broker

Chris,

 

If you ask the question, most people will either know, or there will be conflict. If they are getting along well, then you can esaily get both of them to sign in cases of uncertainty.

 

Other, I suppose, it's off the the lawyers.

 

Brian

Oct 03, 2011 07:52 AM #4
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Brian Madigan

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