Question:
My client has owned her condo for over 20 years. She got married almost 2 years ago. She is now selling her condo and they will purchase a new home together. Do I need the spouse to sign the Listing Agreement and/or Agreement of Purchase and Sale?
Answer:
Did her husband move into her condo such that it became a “matrimonial home”? If so, the “spousal consent” will be required as follows:
- Listing Agreement,
- Agreement of Purchase and Sale, and
- Transfer/Deed.
The lawyer involved in the transaction will attend to the execution of the spousal consent in respect to the Transfer/Deed.
You have an interesting relationship with the husband.
On the purchase, he is your client as well as the wife. You owe fiduciary duties to both of them.
Technically, on the sale, only the wife is actually your client. That’s the way the paperwork is set up. Get him to sign once and then you are done with him. Only the wife needs to sign the further “back and forth” offers. That’s the usual procedure.
However, there is a very real and significant issue here. A good portion of the money for the purchase is coming from the sale of this property. So, he needs to know what’s going on and be kept in the loop just as if he were a client. Your fiduciary obligation to advise him extends beyond the purchase and includes this sale as well.
You will need your client’s permission and authorization to send him all the information. Since they are getting along well and trading up in the market then obviously this should not present a problem.
Brian Madigan LL.B., Broker