Home Sale Voided Over Title Defect and Missing Spousal Consent
Real Estate Law ·
Court Voids Sale Over Title and Consent Issues
A recent Ontario decision underscores why both clear title and spousal consent are essential to any real estate transaction. The Ontario Superior Court ruled that a home sale was void and ordered the seller to return the buyer’s $150,000 deposit.
Case Summary
The purchasers agreed to buy a Kitchener property for $2.84 million. The seller’s spouse had not signed the required consent under the Family Law Act, and a writ of execution remained registered against the property. Despite several extensions, the deal never closed.
When the seller later resold the home for less, the original buyers sought to recover their deposit. Justice Hebner held that the Agreement of Purchase and Sale (APS) was void because the vendor failed to secure spousal consent and could not deliver a clear title.
Title Defects and Clear Title Obligations
An APS typically requires the seller to convey “good and marketable title” free from encumbrances. In this case, the vendor’s attempt to “undertake” to remove a writ of execution was not enough. The court cited earlier decisions confirming that incomplete undertakings do not satisfy the duty to deliver a clear title.
If a writ, lien, or other encumbrance exists, the seller must remove it before closing — or risk the agreement collapsing.
The Role of Spousal Consent
Even outside family law disputes, spousal consent can affect real estate deals. When the property is a matrimonial home, the Family Law Act prohibits its sale without both spouses’ signatures. Here, the absence of consent rendered the entire APS unenforceable.
Lessons for Buyers and Sellers
Buyers: Always have your lawyer conduct title searches early. Confirm that the property is free of encumbrances and that spousal consent has been provided where required.
Sellers: Resolve writs, liens, and marital consent issues before listing your property. A missing signature or unresolved title issue can void a sale and expose you to refund claims or costs.
Protect Your Real Estate Investment
Whether you’re buying or selling, working with a knowledgeable Ontario real estate lawyer ensures your transaction is compliant and secure.
📞 Contact IQBAL LAW today to discuss title issues, deposit disputes, or closing delays and protect your investment from costly mistakes.
Questions about this topic? See our page on real estate matters in Mississauga, or call (289) 652-0529.