If you partly own property, but your co-owner does not want to sell (or develop, or mortgage, etc.), don't worry, you have options.
Sometimes we make a foolish investment; sometimes we split up with our partners; sometimes we fight with our family members. Sometimes we just aren't in agreement about what to do next.
If you are a registered owner and you feel stuck, the answer is simple: bring an application for partition or sale under the Partition Act, RSO 1990 c P4.
The Partition Act
Under the Partition Act, any co-owner, whether by joint tenancy or tenants in common, seeking to force the sale or division of land they own with others can bring an application for a partition or sale of the land. This would allow a joint-owner of a property whose co-owner does not want to sell to seek an order that their property be sold or divided. Any person with an interest in land in Ontario may make an application for partition under the Partition Act. This includes the guardian of a minor who is entitled to the possession of an estate. Though, a proceeding for partition or sale by or on behalf of a minor needs to be on notice to the Children's Lawyer.
An application for the partition or sale of land will proceed under the directions of the court to ensure that everything proceeds fairly. This is to prevent the partition or sale of land being advantageous or disadvantageous to any of the parties.
The Result
In most cases, the court will order the sale or division of the property even if all of the owners do not agree to it. If the property is a condominium or home, and the property cannot reasonably be divided, then it must be sold and the profits be divided amongst the co-owners.
In Brienza v. Brienza, 2014 ONSC 6942, the decision of Davis v. Davis, 1953 CanLII 148 (ON CA) was considered, which sets out the general principles to determine when partition and sale should be granted. The Court of Appeal stated as follows:
"There continues to be a prima facie right of a joint tenant to partition of sale of lands. There is a corresponding obligation on a joint tenant to permit partition or sale, and finally the Court should compel such partition or sale if no sufficient reason appears why such an order should not be made."
It is therefore likely that the application for partition or sale will usually be granted. There are, however, exceptions. For example, the court will not order the sale or division of property if the application is brought in extreme bad faith, or if the application is part of a family law claim. The court in Brienza stated that the court's discretion to refuse partition and sale is narrow and that in order to justify the refusal to grant partition and sale there must be "malicious, vexatious or oppressive conduct." If this is the case, the onus is on the party resisting the partition or sale to demonstrate why the application should be refused.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.