La loi vos droits

Owners

The Special Status of the Family Residence

Joanne and Steve have been married for eight years. They live with their two children in a small house in Drummondville. For a while now, the couple has been having problems, arguing more and more. Steve, who has gambled his way into serious debt, wants to sell the family home to pay some of it off. Joanne thinks the idea is crazy. She wants to know if she can block the sale of the house and how to do it.

In this Infosheet, Éducaloi explains the notion of the family residence and your rights concerning both the family residence and the furniture it contains.

What is a family residence?

A family residence is the residence where spouses choose to live together and raise their children, if they have any. A married couple need not have children in order for their residence to be considered a family residence.

By definition, the family residence is where the family members live while carrying on their principal activities. For example, a cottage is rarely considered a family residence because the spouses (and children) don’t live there during the week.

The family residence comes in various forms: a house, a condo, a rented dwelling, etc.

Can I mortgage, sell, or rent the family residence without my spouse’s consent?

If you and your spouse co-own the family residence, any decision to mortgage, sell, or rent it must be made jointly by both of you. That being said, some deeds of sale or co-ownership agreements contain special provisions respecting your right to mortgage, sell or rent the building.

Oftentimes, only one spouse owns or rents the family residence. In these situations, it would be wise to register at the Land Register  (http://www.registrefoncier.gouv.qc.ca/Sirf/) (French only) or to send the landlord a declaration of family residence; if the owner or tenant spouse sells, rents, or mortgages the residence without the other spouse’s consent, the latter can request that the transaction be cancelled.

What is a declaration of family residence?

It is a declaration made in a document that is registered with the registry office. It simply contains a statement that the building in which you are living is the family’s principal residence. It also serves as evidence should you and your spouse ever have problems concerning the family residence. Essentially, the declaration is meant to notify third parties (landlord, mortgage creditor, prospective buyers) that the building or dwelling is used as the family residence.

You can file a declaration of family residence at any time. Simply obtain the form, fill it in, and file it at the registry office. The declaration may be made by both spouses or one of them.

A simple statement in the contract of sale when you buy your residence can also serve as the declaration of family residence. This contract must also be registered with the registry office.

When and how do I make a declaration of family residence?

To protect your rights, the best time to make the declaration is when your spouse acquires the family residence or as soon as you move into a building already owned by your spouse. It doesn’t really matter since you can register the declaration at any time.

A lawyer or notary can help you or you can complete and register the declaration yourself. It is important to know that your spouse’s signature is not necessary. This means that you can register your right in the principal residence without your spouse’s knowledge.

Your local registry office will give you a declaration of family residence form. You can then bring the form home, fill it in and sign it. You must then make a solemn affirmation and have the form signed by two witnesses before bringing it back. The form can also be downloaded from the Land Register of Québec  (http://www.mrn.gouv.qc.ca/english/forms/forms-individuals.jsp) (under "Land Survey"). The fee is roughly $90. There are more than 70 registry offices in Quebec. Contact Communication-Québec to obtain the telephone number of your local registry office.

Only my spouse signed our lease. Can he terminate, assign or sublet the lease without my consent?

Yes. If your spouse is the only tenant (sole signatory on the lease), the rule is that he can terminate, assign or sublet the lease without your consent. However, you may protect yourself against these acts by notifying your landlord that the dwelling in which you are living is the family residence.

If your spouse fails to seek your written consent after you have given the building landlord a notice of family residence, you can generally prevent your spouse from assigning, subletting or terminating the lease.

How can I give my landlord a notice of family residence?

The best way is to simply mention in the lease, before signing it, that the dwelling will be the family residence.

If no notice is in your lease, simply send the landlord of the building a letter indicating that the dwelling will be used as the family residence. The letter only needs to be signed by you; your spouse’s signature is not necessary. Send it to the landlord by certified or registered mail and keep a copy with proof of delivery. This way, you will be able to prove that you really sent a notice of family residence to the landlord.

If my spouse and I separate, can I continue to live with my children in the family residence?

During divorce, legal separation, or annulment proceedings, a judge may grant the right to use the family residence to the parent with custody of the children. The judge will grant your request only if the circumstances warrant it. He can grant such an order even if your spouse is the sole owner of the residence. Depending on the circumstances, he may set an amount to be paid to the “owner” spouse in compensation for the right to live in the family residence. Such an order can be rendered even if you don’t have children.

If your family residence is a rented dwelling, during the divorce, legal separation, or annulment proceedings, you can ask the court to transfer the lease to you. If the court accepts the request, you will become the sole legal tenant of the dwelling and your spouse will be released from his obligations toward the landlord.

The judge may even grant ownership of the household furniture or the right to use it to one of the spouses. Depending on the circumstances, the judge can order the spouse to compensate the other spouse for this right.

Can my spouse sell the furniture in our family residence without my consent?

No. Your spouse must obtain your consent before selling, mortgaging, or transporting household furniture out of the family residence, whether it belongs to you or not.

Your spouse needs your consent even if you haven’t registered a declaration of family residence, or if you haven’t sent a notice of family residence to the landlord, if you’re living in a rented dwelling. If your spouse negotiates a transaction without your consent, you can have the transaction cancelled as long as the buyer knew the furniture was used for the family.

Furniture used in the family residence includes objects destined to furnish (armchairs, tables, appliances, etc.) or decorate it (paintings and other works of art, but not collections). This is true because these things make up part of the family patrimony. For more information, consult the Infosheet entitled Family patrimony.