Is the Spousal Consent Required for Investment Properties?
By Brian Madigan LL.B.
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?
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