Whether you are a joint tenant or tenant in common of a property with a friend, family member or business partner, you may be forced to sell your property…

The Partition Act allows any person who has an interest in land situated in Ontario to bring an action or application to the court to have that land partitioned or sold under the court’s direction. Section 2 of the Act states that:

“All joint tenants, tenants in common, and coparceners, all doweresses, and parties entitled to dower, tenants by the curtesy, mortgagees or other creditors having liens on, and all parties interested in, to or out of, any land in Ontario, may be compelled to make or suffer partition or sale of the land, or any part thereof, whether the estate is legal and equitable or equitable only.”  R.S.O. 1990, c. P.4, s. 2.

The Ontario Courts have stated that an individual has a prima facie right to partition and sell their property.  In other words, anyone that has an interest in land can force a sale of a home. This, however, may be rebutted by a respondent, which means that the onus is on them to prove as to why the sale and partition should not take place. The Court’s approach to this is fact based and each case is assessed in light of its particular circumstances.

The court has discretion to refuse to grant partition or sale but this is limited to circumstances of malice, oppression and vexatious intent (Brienza v. Brienza, 2014 ONSC 6942 (CanLII), at para. 26, citing Greenbanktree Power Corp. v. Coinamatic Canada Inc. (2004), 2004 CanLII 48652 (ON CA), 75 O.R. (3d) 478 (C.A.)). Please note that seeking partition or sale does not automatically become oppressive or vexatious simply because the other co-owner will be disappointed with the loss of the property.

The recent case, O’Brien v. McGilvray, 2018 ONSC 2442 is an interesting analysis of how the presumption is to favour partition rather than sale, however, a sale will be ordered if the court considers it to be “more advantageous to the parties”.

Keep this in mind when entering a co-ownership arrangement with one or more individuals. You should discuss this with your real estate lawyer and consider having a contractual agreement between all parties involved, setting out all of the parties’ wishes and expectations with respect to the property.

If you need clarity on the difference between a tenant in common and a joint tenant, please read our next blog!