Q: What does the term homestead mean legally? It causes a lot of confusion.
A: Homestead has different meanings, depending upon the context in which it is used.
- My grandfather’s definition: It was the process by which he came and started to farm in Saskatchewan 101 years ago. It all began with 160 acres, the dream of a better life and lots of hard work.
- The Saskatchewan Farm Security Act and other statutes like it: The act defined a homestead as the house and buildings occupied by a farmer as his bona fide farm residence, and the farmland on which they are situated, not exceeding 160 acres.
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The provisions relating to homesteads in that legislation are de-signed to safeguard the home of the farm family, and with a few specific exceptions, prevent foreclosure on the home quarter designated as the homestead.
- The Homesteads Act or Dower Act: In The Homesteads Act of 1989 in Saskatchewan, homestead is defined as property that is or has been occupied by both spouses as the family home at any time during their spousal relationship. This can include the residence with up to 160 acres of land upon which it is situated and property used for a business, if part of it is or was the family home, a trailer, mobile home or condominium.
The purpose of this type of legislation is to protect spouses who do not have their names on the title to the family home so that it can’t be disposed of without their consent.
The Homestead Act requires that a consent, with independent advice, be provided by the non-owning spouse regarding any instrument relating to the family home that conveys or transfers an interest in land, including a transfer, an agreement for sale that sells it over time, a lease, a mortgage and other conveyances.
Such a consent is not required when the owner of the property does not have a spouse or when the spouse is also the owner of the land. In such cases, an affidavit is sworn to that effect to comply with the requirements of the Homesteads Act.
The protection afforded in the homesteads legislation is not only for married spouses but also for common law spouses where the relationship is of a certain duration.
The proper procedure in discussing the Homestead Act requirements usually involves me asking my clients whether they have more than one spouse.
Compliance with this statute seems routine and redundant, but having observed some unfortunate situations in which the act was not complied with, I can attest to its importance.
