The value of property is excluded from the calculation of benefit for as long as impediments outside the person's control PREVENT the sale of the property.
However, additional assistance granted in this respect becomes REIMBURSABLE once the legal impediment is removed.
If property which is temporarily exempted produces INCOME, for example rental income, the income is of course NOT IGNORED in calculating the assistance. This provision covers only the resource produced by the value of the property remaining after deduction of the excluded amount, which would otherwise be taken into account in calculating the assistance.
There is a legal impediment or obstacle in law to alienation of property:
- that has been SEIZED, ATTACHED or SEQUESTERED BY THE COURT.
The seizure may take place during divorce, dissolution of a civil union or separation proceedings when a spouse who may be entitled to part of the other spouse's property if the matrimonial regime is dissolved has the property SEIZED, with the permission of a judge or a Band Council.
- on which there is a LEGAL HYPOTHEC.
When a legal hypothec has been registered against an immovable to secure an obligation, in particular to secure payment of support, there is considered to be a legal impediment to the sale of the immovable unless the parties have agreed to sell despite the hypothec.
- The property is PROHIBITED FROM ALIENATION.
This may be a temporary prohibition from alienation or from sale in a notarized deed or contract (contract of sale, deed of donation, will, etc.).
- A DECLARATION OF FAMILY RESIDENCE is registered against the property.
However, when a judgment of separation from bed and board or of divorce has been handed down, the declaration of residence is no longer a legal impediment, since it may be struck off at the request of any interested party.
- A RIGHT OF HABITATION was granted by a COURT over the property.
However, the terms of the judgment must be examined to see whether the recipient may be released from his or her obligation.
- The property is in UNDIVIDED CO-OWNERSHIP
When the co-owners are not married or civilly married nor common-law spouses who have instituted separation or divorce or dissolution of a civil union proceedings AND they cannot come to an agreement AND they bring a partition action.
There is considered to be a legal impediment to the sale of the immovable as of the time the partition action is instituted.
Furthermore, the sale of a property is considered to be legally prohibited when the partition is postponed, as provided in the Civil Code of Quebec:
- by AGREEMENT between the undivided co-owners;
- by a TESTAMENTARY disposition;
- by a JUDGMENT (e.g. successoral undivided co-ownership of a family residence or family business);
- by operation of law.
- The property against which a TAKING IN PAYMENT proceeding has been instituted.
There is a legal impediment during the time between the eviction of the debtor and the judgment stripping him or her of ownership.
- Spousal or civilly married property DURING SEPARATION, DIVORCE OR DISSOLUTION OF A CIVIL UNION PROCEEDINGS.
- In the case of a FAMILY RESIDENCE:
The legal impediment applies when the total net value of the exempt property exceeds $266 824 or $381 294 for clients with a severely limited capacity for employment.
OR
to the total value when the judgment has not yet been handed down after the 18-month exemption period, unless the former spouses agree on the sale.
- In the case of PROPERTY OTHER THAN THE RESIDENCE:
The legal impediment applies from the time when legal proceedings are instituted for the purpose of having the patrimony divided or dissolving the matrimonial regime. An application for division may be made when he action in the separation, divorce or solution of a civil union or dissolution of the civil union at the notary’s is undertaken.
However, if the married or civilly married fully AGREE, despite the legal action instituted, TO SELL property belonging to either of them in which the other spouse may have an interest, there is no obstacle to the alienation of the property.
- The property is owned by FORMER COMMON LAW SPOUSES (co-ownership).
The legal impediment applies where the other spouse has instituted proceedings to have his or her interest in the property recognized AND the total net value of the exempt property during the 24-month exemption period exceeds $266 824 or $361 294 for clients with a severely limited capacity for employment.
OR
to the total value when judgment has not yet been handed down after the 18-month exemption period where the former spouses have not agreed to sell.