Certain every-day situations in the lives of married couples may have an impact on real estate brokerage.

It is important to note that the situations described in this article do not apply to common-law partners. For common-law relationships, you must refer to the rules of civil law, particularly those relating to undivided co-ownership.

Marriage

After a marriage has taken place, the spouses are governed by several laws designed to protect the family’s assets and interests.

Depending on the type of assets and matrimonial regime, written consent from the non-owner spouse may be required, particularly for the sale of a building used in whole or in part by the family. This consent is of great importance, as failure to obtain consent might, in certain circumstances, enable the aggrieved spouse to cancel the sale.

By obtaining consent, you will avoid the problems that arise when a spouse refuses to consent to a sale once a promise to purchase has already been accepted and the signing of the deed of sale is the only element that remains. Obtaining consent also helps to ensure your compensation (which may be affected) and avoid potential lawsuits for damages and ethics complaints.

Spousal involvement is provided for on many of the mandatory forms of the Organisme d’autoréglementation du courtage immobilier du Québec (OACIQ, formerly ACAIQ), particularly in the brokerage contract and the promise to purchase. Furthermore, Section 27 of the Regulation respecting the application of the Real Estate Brokerage Act, which is still applicable under the new Act for a period of 18 months, addresses the obligation to obtain consent from the spouse under certain circumstances.

Given the above information, you should first verify with the land register to see whether a declaration of family residence was published. You can also know your client’s status, including marital status, by looking at his/her act of acquisition. Finally, you can validate the information directly with your client, as his/her situation may have changed in the meantime.

It goes without saying that notaries also perform verifications and obtain the necessary consents when applicable. But at this stage, it is often too late to prevent the damage that may result from a refusal to sell. You will only be informed of the situation a few weeks, or even a few days, before the signing of the deed of sale.

Divorce

What happens when the parties get a divorce?

The above elements remain applicable until a legal separation, divorce or any other judgement has been declared that specifically modifies the rights and obligations of the spouses.

After a separation, one of the spouses may be granted the right to use the building. The awarding of a right of exclusive use is equivalent to a land title. This means that the right to sell the building is affected. This right of use must be published in the land register in order for it to be opposable to third parties. Thus, verifying the register will enable you to confirm the presence or absence of this type of right, and also to take the necessary measures to sell the building under these conditions.

Also, as part of a proceeding, a spouse may ask that the property in the family residence be attributed to him/her. In this case, it is highly likely that this spouse will refuse the sale of the building to a third party.

Conclusion

Many situations or events in everyday life can affect your rights and obligations under a brokerage contract. The same applies to the rights and obligations of a buyer and seller that ensue from a promise to purchase. It is highly recommended that you conduct certain verifications as a precaution. Your clients will be grateful because, as the saying goes, prevention is the best cure.

Source Fédération des chambres immobilières du Québec