Family Residence Declaration in Quebec | Mortgage Impact

RefinancePro.club

The family residence declaration is a protection mechanism provided by the Civil Code of Quebec (art. 395-413) designed to protect the family home against unilateral acts by a spouse. When a family residence declaration is published at the Land Register, the owner cannot sell, mortgage or encumber the residence without the written consent of their spouse. This protection applies automatically to married or civilly united couples, whether the residence is rented or owned. For owned property, publication of the declaration at the Land Register alerts third parties (lenders, buyers) of the existence of this protection right. Even without a published declaration, spousal consent is required to mortgage the family residence (art. 404 C.C.Q.). Mortgage brokers must verify the existence of a family residence declaration for any financing request and ensure that spousal consent will be obtained. The notary also verifies this condition at the time of mortgage signing.

Family Residence Declaration: Spousal Protection

The family residence declaration is one of the most important protection mechanisms in Quebec family law. Provided for in articles 395 to 413 of the Civil Code of Quebec, it aims to prevent a spouse from disposing of the family residence without the other's consent. This protection has direct implications for mortgage transactions, refinancing and property sale.

How the Protection Works

The family residence declaration is published at the Quebec Land Register by a notary. Once published, it signals to all third parties (lenders, potential buyers) that the property is a family residence and that spousal consent is required for any transaction. Even without publication, spousal consent is required by law (art. 404 C.C.Q.), but publication provides additional protection by making the right visible.

Impact on Mortgage Transactions

Spousal consent is required to constitute or modify a mortgage on the family residence
Refinancing requires the spouse's signature, even if they are not the owner
Sale of the family residence requires both spouses' consent
Mortgage annulment is possible if consent was not obtained
The lender may refuse financing if spousal consent cannot be obtained

Practical Steps

Publishing a family residence declaration is a simple and inexpensive process performed by a notary. Spouses should ideally publish it upon purchasing the residence or upon marriage. The mortgage broker can recommend this step to married clients. When verifying the file, the broker must confirm the client's civil status, check the Land Register for the presence of a declaration and arrange for the spouse's signature at the notary's office.

Frequently Asked Questions

What is a family residence declaration?

It is a legal act published at the Land Register that signals the immovable serves as the family residence. It prevents the owner from selling, mortgaging or encumbering the property without spousal consent. It serves as a warning to third parties and strengthens the non-owner spouse's protection.

Is spousal consent required even without a declaration?

Yes. Article 404 of the Civil Code of Quebec requires spousal consent to mortgage the family residence, whether or not the declaration is published. The declaration strengthens this protection by making it visible to third parties, but the consent right exists independently of publication.

What happens if the mortgage is signed without spousal consent?

The mortgage may be annulled by the court at the request of the spouse whose consent was not obtained. The spouse has one year from the time they become aware of the act to request annulment. This annulment can have serious consequences for the lender.

How do you publish a family residence declaration?

The declaration is drafted by a notary and published at the Quebec Land Register. It is entered on the property file and remains in effect until its withdrawal or sale of the property with both spouses' consent. Publication costs are relatively modest.

Does the declaration protect common-law partners?

No. The family residence declaration and the consent requirement apply only to married or civilly united couples. Common-law partners do not benefit from this protection and must use a cohabitation agreement to establish similar rights.