Q: I own some farmland that has been rented out for a number of years. My relationship with my wife ran into problems and we reached the stage where she moved out and began divorce proceedings. However, we reconciled.
As part of the reconciliation process we had wills drawn up. Some land was to be left to my children, some to her children (we both were previously married) and some to my wife. Unbeknownst to me, my wife had caveats filed against the land protecting her claim. She has told me that she will not remove the caveats and has instructed her lawyer that they are not to be removed under any circumstances.
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How can I have these caveats removed? In event of my death, would these caveats present a problem to my executor?
A: A caveat is a notice filed in the land titles office claiming an interest in the property against which it is registered. It can be filed for many reasons. A purchaser whose offer to buy land has been accepted has an interest in the land and can file a caveat. A tenant can file a caveat to protect his lease. A caveat can also be filed to protect interests including a right to enter and remove gravel, an easement or building restrictions.
The fact that a person is mentioned in a will does not give him an interest in land and would not entitle him to file a caveat. A will only takes
effect on death.
In Saskatchewan, a spouse can file a caveat to protect a homestead, which is any place where the couple lived. It can’ t be sold or otherwise dealt with except with the consent of both spouses. A homestead continues to be one even after the couple no longer lives there.
A homestead caveat can only be removed either by the consent of the spouse or a court order. In Alberta, under the Dower Act, a spouse who has initially agreed on a general release of his or her dower rights to a homestead can file a caveat to cancel that release.
Your letter is not clear on what basis your wife has filed a caveat. Was it a homestead caveat? Or did you enter into an agreement that gave your wife an interest in the land? Such an agreement could be the basis for a caveat.
Some caveats can be challenged by giving notice to the caveator to come to court and prove that she has a valid interest in the land. Other caveats can only be taken off by court order.
As long as there are caveats against the land, your executors cannot offer clear title to anyone to whom they transfer the land. A homesteads caveat means the property cannot be dealt with except with the consent of the other spouse or by order of the court.
It seems to me that you and your wife have started the process of settling your affairs but have not completed it. If you have entered into an agreement dividing up the land that gives your wife an interest in the land, she would be perfectly entitled to file and maintain her caveats. You need to talk with your lawyer to gain a clear understanding of the agreement.
If you don’ t have such an agreement, you probably need to discuss with your wife and lawyers the respective rights of each party. But remember, you are trying to rebuild your relationship. Entering into long legal battles with your spouse is not going to help.
Saskatchewan readers should note that over the next year, a new land titles act is being phased in. It is being introduced at different dates in each land titles office starting in Moose Jaw and ending in Swift Current. There will be no caveats under the new system. Instead, you will register your actual interest. This is similar to some other provinces such as British Columbia. However, homestead caveats will continue under the new system.
