Senstad v. Makus

Senstad v. Makus

Written consent complying with s.5 of The Dower Act constitutes effective consent for the purposes of s.3(1); absence of an s.6 acknowledgment does not automatically render the disposition ineffective, although it leaves the consent open to attack on grounds such as lack of awareness or coercion; therefore the purchaser was entitled to specific performance and the trial judgment was restored.

Citation
[1978] 2 SCR 44
Parties
Plaintiff/appellant: Jorn Senstad; Defendant/respondent: Alfred William Makus
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
30 September 1977
Procedural Posture
Appeal / Supreme Court of Canada Decision on Appeal From the Supreme Court of Alberta, Appellate Division
Outcome
Appeal allowed; judgment of the Appellate Division set aside; trial judgment restored ordering specific performance.
Legal Topics
Dower, Homestead, Specific Performance, Statutory Interpretation, Registration Requirements
Source Language
English
Property Law Land Law Family Law Dower Homestead Specific Performance Statutory Interpretation Registration Requirements

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Parties

Jorn Senstad

Plaintiff/appellant

Alfred William Makus

Defendant/respondent

Procedural Posture

Appeal / Supreme Court of Canada Decision on Appeal From the Supreme Court of Alberta, Appellate Division

Legal Issues

  1. 1 Whether a written consent by spouse under s.5 of The Dower Act is rendered ineffective for purposes of s.3(1) by absence of an acknowledgement under s.6
  2. 2 Whether s.6 acknowledgement is a precondition to the validity/enforceability of an agreement for sale of a homestead
  3. 3 Whether purchaser entitled to specific performance despite absence of s.6 acknowledgement

Ratio Decidendi

Written consent complying with s.5 of The Dower Act constitutes effective consent for the purposes of s.3(1); absence of an s.6 acknowledgment does not automatically render the disposition ineffective, although it leaves the consent open to attack on grounds such as lack of awareness or coercion; therefore the purchaser was entitled to specific performance and the trial judgment was restored.

Court Disposition

Appeal allowed; judgment of the Appellate Division set aside; trial judgment restored ordering specific performance.

Orders

  • Allow appeal and set aside judgment of the Appellate Division
  • Restore trial judgment ordering specific performance of the agreement of purchase and sale