Can a Co-Owner Force the Sale of a Jointly Owned Home in Ontario?

Owning a home with someone else works well until one person wants out. Maybe a relationship ended, a parent's house was left to several siblings, or an investment partner wants to cash in. If the other owner will not agree to sell or buy you out, you may wonder whether you are simply stuck.

In Ontario, the law gives co-owners a way to ask a court to break the deadlock. This article explains the basics of partition and sale, the waiting period that applies to inherited property, the special rules for spouses, and the practical alternatives to going to court.

What the Partition Act allows

Ontario's Partition Act applies to joint tenants, tenants in common and others with an interest in Ontario land. They may be compelled to make or suffer partition or sale. In plain words, "partition" means dividing the land between the owners, and "sale" means selling it and sharing the proceeds.

Any person interested in the land may apply to court for partition or sale. You do not need the other owner's agreement to start the application. That is the main point: one owner generally cannot hold the others in co-ownership forever.

What a judge will actually order in your situation, and how the proceeds are divided, depends on the facts. That includes who paid what, what the title says and whether anyone has other claims on the property. A lawyer can tell you how those points apply to you.

The one-year wait after an inheritance

If the land passed by will or on an intestacy (no will) to joint tenants or tenants in common, no partition proceeding can be taken until one year after the death. This often matters to siblings who inherit a family home together and disagree about keeping it.

The wait does not stop you from talking. During that first year you can still negotiate a buyout, agree to sell together or sort out how the estate will be handled.

If the house is part of an estate, remember that an estate normally must be probated if the deceased owned real property that does not pass to someone else by right of survivorship. If the property must be sold, the certificate should be obtained before anyone signs an Agreement of Purchase and Sale.

Special situations to watch for

• Spouses: both spouses have an equal right to possession of a matrimonial home, whoever is on title. No spouse may sell or mortgage an interest in it unless the other spouse joins in or consents, has released their rights in a separation agreement, or a court order authorizes it.
• Spouse not on title: a spouse with no ownership interest has a possession right that is personal and ends when they stop being spouses, unless an agreement or order says otherwise. A court can order exclusive possession under s. 24 regardless of ownership.
• Common-law partners: the matrimonial home rules in Part II of the Family Law Act apply to married spouses as defined in s. 1(1). Common-law couples are not legally required to split property acquired while living together, though a partner who contributed may have a claim and may need to go to court.
• Joint tenant who dies owning a matrimonial home with someone other than their spouse (for example, an adult child): the joint tenancy is deemed severed immediately before death, so the right of survivorship does not operate.

If a relationship breakdown is behind the dispute, the sale of the home may be only one piece of a larger property discussion. On marriage breakdown, the full value of the family home must be shared even if one spouse owned it before marriage or received it as a gift or inheritance. Equalization claims must be made within six years of separation or two years of divorce, whichever comes first.

Options other than a court application

A court application is usually a last step. Many co-owners reach a deal first. Common routes include one owner buying out the other, both agreeing to list the home, or dividing the land if it can be divided. Each has tax and paperwork consequences worth checking.

Toronto also has its own municipal land transfer tax on top of the provincial tax, so a buyout there may cost more. A lawyer or accountant can confirm the numbers before you sign anything.

If you sell or are considered to have sold a home that was your principal residence, you must report the sale and designate the property on Schedule 3 to claim the principal residence exemption. A property you did not live in may have different tax results, so ask an accountant.

What to do next

• Get a current copy of the property records. Anyone can search, view and download property records, such as a parcel register, through OnLand for a fee.
• Confirm exactly how title is held and who is on it.
• Write down what each owner paid for the purchase, the mortgage, taxes, repairs and insurance, and keep the receipts.
• Check whether the home is a matrimonial home, or whether the co-ownership came from an inheritance and the one-year wait applies.
• Try a written offer to buy out or sell together before heading to court.
• Speak with a real estate lawyer about timing, costs and whether an application makes sense, and with an accountant about tax.

Do not sign a sale agreement, transfer or mortgage on your own if other owners or a spouse have rights in the property. A transaction that breaks the matrimonial home rules may be set aside.

Frequently asked questions