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

Owning a property with someone else works well until the owners stop agreeing. One owner wants to sell, the other wants to stay, and it is not clear whether anyone can make the other give way.

In Ontario, the Partition Act gives co-owners a court route. This article explains who can use it, when inherited land is protected for a time, how land transfer tax applies, and what changes when the property is a family home.

What the Partition Act allows

Joint tenants, tenants in common and others with an interest in Ontario land may be compelled to make or suffer partition or sale. Any person interested in the land may apply to court for partition or sale.

In plain words, partition means dividing the land between the owners. Sale means the land is sold and the money is shared. This article does not cover how a court chooses between the two, because that depends on the facts and the court's own judgment. A lawyer can tell you how it may apply to your situation.

Inherited land: the one-year wait

Where land passed by will or intestacy (no will) to joint tenants or tenants in common, no partition proceeding can be taken until one year after the death.

This means that if you and a sibling inherit a house together, neither of you can start a partition proceeding straight away. The wait applies to land that came to you through a will or an intestacy, so it is worth confirming how the property came to be co-owned before relying on it.

Land transfer tax when co-owners divide or change how they hold title

Ontario's Land Transfer Tax Act has no general exemption for gifts of land, and the tax is normally calculated on the value of the consideration. Two co-ownership situations are specifically not taxed.

• Partition: no land transfer tax is payable where co-tenants divide land so that each receives land equal in value to their original interest.
• Changing tenure: converting a tenancy in common to a joint tenancy, or the reverse, between the same parties is not a conveyance under s. 1(1) of the Act, so no land transfer tax applies.

If one owner buys out another, or takes on a mortgage as part of the arrangement, different rules may apply. Because the value of the consideration is defined broadly, confirm the tax with a lawyer before you sign.

When the property is a matrimonial home

A matrimonial home is property a spouse has an interest in that the spouses ordinarily occupy as their family residence, or did at separation. Both spouses have an equal right to possession of it, whoever is on title.

• No spouse may sell or mortgage an interest in a matrimonial home unless the other spouse joins in or consents, has released their rights in a separation agreement, or a court order authorizes it.
• A transaction that breaks this rule may be set aside.
• A court can order exclusive possession of a matrimonial home regardless of ownership.

There are exceptions. Consent is not needed for a property that both spouses have not designated as a matrimonial home, where a joint designation of another property is registered and not cancelled. The possession right of a spouse with no ownership interest is personal and ends when they stop being spouses, unless an agreement or order says otherwise. These matrimonial home rules apply to married couples, so common-law partners should get advice on their own position.

Practical steps

• Search the parcel register through OnLand to see how title is held and who the registered owners are. Anyone can search, view and download current and historical property records for a fee.
• Confirm how the property came to be co-owned, including whether it was inherited and when the death occurred.
• Check whether the property is, or was, your family residence if a spouse is involved.
• Ask a lawyer about land transfer tax before any buyout, division or change in how title is held.
• Get legal advice before starting a court application.

Talking to the other owner first can sometimes avoid court. If it cannot be resolved, a lawyer can explain your options and the likely steps.

Frequently asked questions