Persons who are married or in a civil union
This section applies solely when only one of the spouses is the owner of the immovable that the broker must put on the market.
Single, common-law, divorced, married or in a civil union: when it comes to signing a brokerage contract, promise to purchase or counter-proposal, marital status has an impact.
An institution contracted between two persons, of legal age, of same or different sex, publicly before a qualified officiant and in the presence of two witnesses.
An institution similar to marriage, created in 2002, through which same-sex or opposite-sex couples can be united.
For the real estate broker, the applicable rules are the same whether a couple is married or in a civil union.
General principle to remember
When only one of the married or civil union spouses is the owner of the immovable to be sold, the broker should always have the non-owner spouse sign in the space provided on the forms. When – and only when – this is not possible, the broker must analyze the situation to determine if the signature of the non-owner spouse is absolutely necessary by following the following steps.
Three concepts apply to all persons married or in a civil union in Québec:
1. family residence;
2. family patrimony;
3. matrimonial regime.
1. Family residence
The family residence is where the members of the family reside and carry on their principal activities. It is chosen by the spouses.1 There is only one family residence per family. The concept of family residence only applies to married or civil union couples. Important to note: The concept of family residence does not exist for de facto spouses. According to the Civil Code of Québec, there is no family residence for de facto spouses, whether as owners of an immovable or as tenants of a dwelling.
1 Art. 395 C.C.Q.
Why is the concept of family residence important for the broker?
Because it has an impact on the signatures that must be obtained in the course of his work. The fact that an immovable is a family residence has consequences on the exercise of the rights of the owner spouse. These consequences are set out in the Civil Code of Québec, more specifically under articles 404, 405 and 408.
Source: Civil Code of Québec
Here is how to fill out the brokerage contract to sell or any transaction proposal when the property for sale is used as a family residence.
Once the determination has been made that the immovable is used as a family residence, the number of dwellings in the immovable, or whether or not a declaration of family residence has been published, has no bearing on either the brokerage contract to sell or purchase, or the brokerage contract to lease if the dwelling is used as the family residence of a tenant.
► Enter only the name and contact information of the owner spouse in section 1 of the form Brokerage contract – Sale, Promise to purchase, Counter-proposal or Promise to lease.
Fill out section 1. Identification of the parties to the brokerage contract to verify the identity of the owner spouse selling the property. The information of the non-owner spouse does not have to be entered in this section. However, the broker must verify the identity of the non-owner spouse using the form Identity verification.
► In the signatures section, the owner spouse signs as seller or lessor.
► The non-owner spouse signs in the section reserved for the intervention of the spouse.
Why involve the owner’s spouse when the immovable is used as a family residence, regardless of the number of dwellings? Because the Civil Code of Québec prohibits the owner from selling the property without the spouse’s consent.
As soon as the marriage is pronounced, a person can publish a declaration of family residence their spouse’s property, whether or not this person is the owner. This declaration is made in the Land Register of the Bureau de la publicité des droits, as provided for in the Civil Code of Québec.
According to article 407, “The declaration of family residence is made by both spouses or by either of them.
It may also result from a declaration to that effect contained in an act intended for publication.”
The impact of this publication is defined in articles 401 and following of the Civil Code of Québec:
This means that the owner spouse cannot sell, mortgage or dispose of the immovable and movable property serving for the use of the household without the consent of the other spouse. If the other spouse refuses, the owner can apply for authorization from the court.
If the spouses are lessees, articles 403 through 405 apply:
“Neither spouse, if the lessee of the family residence, may, without the written consent of the other, sublet it, transfer the right or terminate the lease where the lessor has been notified, by either of them, that the dwelling is used as the family residence.
A spouse having neither consented to nor ratified the act may apply to have it annulled.”
If the family residence is in an immovable with five dwellings or more, article 405 of the Civil Code of Québec states that the spouse not having consented to the act of alienation may require from the acquirer the grant of a lease of the premises already occupied as a dwelling, under the conditions governing the lease of a dwelling; likewise, a spouse having neither consented to nor ratified the act of lease may apply to have it annulled.
Whether or not a declaration of family residence was previously published against the immovable, the broker must absolutely obtain the written consent of the non-owner spouse.
If a non-owner spouse refuses to sign the brokerage contract in the appropriate places, or if the spouse refuses to sign the promise to purchase when he has already signed the brokerage contract, the owner will have to obtain the court’s authorization to sell the property. In such a case the broker must refer his client to a lawyer.
De facto spouses
In Québec, many couples decide to live together without being married or in a civil union. This choice has legal consequences in the context of real estate transactions.
In Québec law, there is no single definition of de facto union, also called common-law union or cohabitation, either in the Civil Code of Québec or in specific statutes.
Common law spouses or cohabitants may therefore be defined as two persons of different or same sex who live together, publicly presenting themselves as a couple, and this, unless otherwise provided, without regard to the number of years they have lived together or to the presence or absence of common children. However, certain laws of particular application require minimum periods of cohabitation with or without common children
Legal consequences in the context of real estate transactions
De facto spouses live together but are not married or in a civil union. The concepts of family patrimony, family residence and matrimonial regime do not apply.
In addition, many de facto spouses each own half of the family residence or other immovable property. Since they are co-owners, both spouses must sign the documents.
Who signs the forms?
Based on the ownership titles establishing whether or not they are owners, one or both will sign the documents. The broker must be careful, as there is sometimes a “de facto union agreement” between the spouses. This agreement could contain a clause concerning the fate of the joint residence in the event of a break-up, giving, for example, a priority right of purchase to the non-owner former spouse.
2. Family patrimony
The family patrimony is made up of movable and immovable property, including the family residences or the rights conferring the use thereof (principal residence and secondary residences) and the property destined to furnish or decorate them and serving for the use of the household. The family patrimony has no impact on the work of the real estate broker, unlike the matrimonial regime discussed below. The family patrimony does not change the ownership of the immovable and does not require the intervention of the non-owner spouse in the brokerage contract to sell or in a promise to purchase (or counter-proposal), except in the case of the family residence. In the latter case, the non-owner spouse must sign the forms in the space provided for this purpose.
3. Matrimonial regime
If the immovable being sold is not a family residence, the broker must get information regarding the spouses’ matrimonial regime, regardless of the number of dwellings or whether the immovable is residential or commercial.
There are three matrimonial regimes in Québec:
3.1. Community of property, legal regime before July 1, 1970 (or conventional regime since that date);
This regime includes three categories of property:
a) Community property;
b) Reserved property;
c) Private property of each spouse.
3.2. Separation as to property, conventional regime;
3.3. Partnership of acquests, legal regime since July 1, 1970.
3.1 Community of property
The community of property matrimonial regime was the legal regime prior to July 1, 1970. Under this regime, only the husband was responsible for administering the property.
a) Community property
Community property consists in all the movable property owned by the spouses at the time of the marriage and acquired during the marriage, as well as the spouses’ earnings. It also includes immovable property acquired by the husband during the marriage.
In order to sell community property, whether movable or immovable, the husband must obtain his wife’s authorization, even if the property is under his name only. Therefore the wife must sign the forms as non-owner spouse.
b) Reserved property
Reserved property consists in movable or immovable property acquired by the wife with her own earnings during the marriage. Although the wife may acquire the immovable, she must obtain her husband’s consent to mortgage it. She must also obtain her husband’s consent to sell this immovable. Therefore she can sign the deed of acquisition on her own if the purchase is made in cash. For a sale, the husband must sign the forms as non-owner spouse.
c) Private property of each spouse
The private property of each spouse includes:
- immovables acquired before the marriage, such as a house, cottage or co-ownership apartment (condo);
- gifts received from the other spouse under the marriage contract;
- gifts received from the other spouse during the marriage;
- legacies received from the spouse’s ascendants (father, grandmother, etc.);
- compensation received by the spouse as damages for bodily or moral injury, such as compensation from the SAAQ for an injury sustained in a road accident.
3.2 Separation as to property
Under this regime, each spouse:
- remains the owner of his property, whether acquired before or during the union;
- is the sole administrator of his property;
- is responsible for his debts, except debts contracted for the day-to-day needs of the family.
Partition of property
- In case of breakup of the union, each spouse retains his own property, provided they can prove they own it.
- However, the spouses must first settle their family patrimony, which requires them to share the value of certain property equally.
Property over which the spouses are unable to establish their exclusive right of ownership is presumed to be held by both in undivided co-ownership, one-half by each.2
2 Art. 487 C.C.Q.
Source: Matrimonial regimes and civil union regimes – Separation as to property
3.3 Partnership of acquests
Partnership of acquests is the legal regime in effect since July 1, 1970. If spouses marry without a marriage contract, they are automatically governed by the partnership of acquests legal regime. It is possible to enter into a marriage contract and to choose the partnership of acquests regime.
Under this regime, article 448 of the Civil Code of Québec provides that:
“The property that each of the spouses possesses when the regime comes into effect or that each subsequently acquires constitutes acquests or private property according to the rules that follow.”
Private property is movable or immovable property owned prior to the marriage, property received by succession or gift during the marriage, an instrument required for one’s occupation or property acquired to replace private property.
Acquests include movable or immovable property acquired during the marriage by either spouse. Under this regime, the rule is that each spouse may administer his own property, whether private property or acquests. This means that each spouse may alone sell an immovable they own.
In the case of a family residence however, the broker must obtain the consent of the non-owner spouse.
Over time, the majority of private property has a tendency to become acquests. Property acquired prior to the marriage, but not paid in full, will become an acquest if half or more is paid during the marriage. In such cases, the value of the property can be shared between the spouses in case of dissolution of the matrimonial regime. In the same cases, if the amount of the sale is used to buy another immovable, it will be considered a reinvestment of private property in the eyes of the law.
Who owns the immovable?
Only one de facto spouse
Only the owner spouse signs
A person who is married or in a civil union
The owner spouse signs as seller, and the other spouse signs in the appropriate space as the seller’s spouse
Community of property
If community or reserved property, the owner spouse signs as seller and the other spouse signs in the appropriate space as the seller’s spouse
Separation as to property
Only the owner spouse signs as seller; the other spouse’s intervention is not required*
Partnership of acquests
Only the owner spouse signs as seller; the other spouse’s intervention is not required*
*If the immovable is used as family residence, the spouse’s intervention is required.
► DUTIES AND OBLIGATIONS OF THE BROKER
Where only one spouse is the owner of the immovable being sold and the immovable is used as family residence, or if required by the owner’s matrimonial regime, the broker must:
- get the non-owner spouse to intervene by having him or her sign the forms directly (brokerage contract, promise to purchase) in the space provided. In this case, the broker must verify the spouse’s identity and keep proof of this verification in the record. For example, by keeping a duly completed Identity verification recommended form.
- if the non-owner spouse does not sign the forms directly, obtain from the seller documentation attesting to the non-owner spouse’s consent and, if applicable, his participation and undertaking to intervene in the notarized deed of sale for the same purposes, or obtain a copy of the judgment authorizing him or her to sell the immovable without the consent or participation of the spouse.
Foreign matrimonial regimes
Foreign matrimonial regimes are all matrimonial regimes governed by a law other than the Civil Code of Québec. Caution should be exercised in these cases and the broker should have the non-owner spouse intervene in the contracts, in addition to having them signed by the owner spouse as the selling party.