Are you worried that your spouse may sell or mortgage the home you live in with him or her, without your consent? What if you want to file a lien on a property you live in with your spouse? Do you have to start a lawsuit or is there an easier way?
The good new is, there is an easier way. You can file an “entry”, which acts as a lien against a home you reside in, without notifying the owner spouse and without starting a court action. This lien or entry, as it is called, is filed under British Columbia’s Land (Spouse Protection) Act.
To be eligible to file an entry you must:
1. Be a legal spouse or common law spouse, defined as having lived in a marriage-like relationship with the owning spouse for a continuous two-year period or more;
2. The entry can only be filed on a home that you have resided in with your spouse;
3. The entry must be filed within one year of your residence in the home;
4. The home must be owned only by your spouse, if you are on title you cannot use this lien;
5. If you are divorced you cannot use this lien.
6. If you are separated and have resolved ownership of the family home, you cannot use this lien
While this entry is on title the owning spouse cannot take any of the following actions:
(a) transfer, agree to sell, assign an agreement for sale, or lease or execute any other instrument intended to convey or transfer any interest in land;
(b) mortgage or encumber the land with the payment of money;
(c) devise or dispose of the land by your will; and
(d) mortgage by deposit of duplicate indefeasible title or indefeasible title, or other mortgage not requiring the execution of any document.
However, a lien under this legislation does not give the lien holder any priority over other filings against the land. To obtain priority, a person must commence a court action against the land and file a certificate of pending litigation pursuant to the Land Title Act.
If an owning spouse wishes to sell the property that spouse must obtain the consent of his or her spouse. Typically, if a spouse with an entry on title refuses to agree to a sale, a court order will be required. The usual remedy is that the sale is approved by the court with the net sale proceeds held in trust, pending the resolution of the spouse’s claim against the property under the Family Law Act.
Lawdiva aka Georgialee Lang