Can a Co-Owner Force the Sale of a House in Ontario?

When one owner wants out of a shared home and the other refuses to sell, it can feel like a stalemate. Ontario has a legal route for these situations, usually called a partition and sale application, and it is more favourable to the owner who wants to sell than many people expect.

This article explains the basic rules, what a court looks at, and the realistic alternatives. Every case turns on its facts, so treat this as a starting point for a conversation with a lawyer.

The starting point: a right to ask the court

Joint tenants have a prima facie right to force a sale under s. 2 of the Partition Act. In plain words, prima facie means the right is presumed to exist unless the other side can answer it.

For a sale specifically, s. 3(1) of the Act allows an order only where the court considers a sale more advantageous to the parties interested. How these rules apply to owners who hold in other ways, or who are in a relationship breakdown, depends on the facts and is worth confirming with a lawyer.

What the court looks at

The onus is on the party resisting the sale to show why the property should not be sold. A court will refuse only if satisfied that the party seeking the sale is acting in a malicious, vexatious or oppressive fashion.

That is a high bar. Simply not wanting to move, or disliking the timing, is generally not the same as showing the other owner is acting maliciously or oppressively.

Possible outcomes besides a straight sale

A court does not always simply order the house listed. The Court of Appeal has upheld an order that a house be sold unless the owner resisting the sale bought out the other owner's interest. This gives the person who wants to keep the home a chance to do so, but they must be able to pay and, usually, to finance it.

• A sale of the home, with the details of how it happens and how money is divided depending on the facts and worth confirming with a lawyer.
• A sale unless one owner buys out the other.
• A negotiated buyout or agreement reached before the court decides anything.

If a court order is needed to move title, land registry guidance says a vesting order should use the word 'vest' and state the full name and date of birth of the party in whom the land vests. A lawyer drafts these details.

Mortgages, spouses and other complications

• Separating spouses: transfers between spouses or former spouses are taxable unless an exemption applies, including where the transfer complies with a written separation agreement or a court order. A family law lawyer should look at the whole picture.
• Charges on title: a charge registered by only one joint tenant does not automatically sever the joint tenancy.
• Costs and delay: a court application takes time and money, and an appeal is a further step. Neither is a reason to avoid getting advice early.

What to do next

• Obtain a current copy of the title to confirm who the owners are and how they hold title.
• Gather the mortgage statement, property tax bill, and a record of who has paid what.
• Write down what you want: sale, buyout, or time to arrange something.
• Consider a lawyer's letter proposing a sale or buyout before any court step.
• Ask a lawyer whether a partition and sale application fits your facts and what the other owner might argue.

Frequently asked questions