The “Off-Title Spouse” in a Real Estate Transaction

By Mirjana (Mira) Markovic

Dear Friends,

I often receive a myriad number of questions when I discuss “off-title spouses” with clients. So, today I thought I elaborate on this topic and clarify it from a real estate transaction perspective.

Did you know that it is legally possible to own a matrimonial home and register it into one spouse's name alone, even though you are married? This simply means that one spouse would be registered on title while the other spouse is referred to as the “unregistered spouse” and/or the “off title spouse”. Regardless, both have equal rights of possession. Furthermore, if an individual is married, he or she cannot simply sell or mortgage the matrimonial home without the other spouse’s consent. So, it follows that to sell or to obtain a mortgage on a property, the “off title” spouse is required to execute a consent for the transaction to be successfully completed.

Subject to a few exceptions, the law protects off-title spouses by preventing the registered spouse from unilaterally disposing of an interest in a matrimonial home. This law is also applicable to spouses who are also both registered on title. Properties that do not fall under the “matrimonial home” umbrella such as investment properties are dealt with in accordance with ownership. Therefore, it follows that if a couple is married and one spouse purchases a property for investment purposes and then sells it in the future, the consent of the other is not required.

Due to the above, your lender and/or mortgage broker are required to obtain your spouse’s consent before approving a mortgage, while your real estate lawyer is required to obtain it before registering your mortgage and/or discharging it if the property is being sold. Recently, as a result of higher fraudulent transaction attempts, lawyers have taken a stricter approach to err on the side of caution, and many now require a spousal consent before registering and/or discharging a mortgage even on non-matrimonial properties.

This article was written by Mira Markovic. She can be contacted at mira@sorbaralaw.com for further inquiries.