Can You Force a Co-Owner to Sell Property in Alberta?

You own land with someone else, and you want out. Perhaps the relationship has changed, the other owner will not agree to sell, or you simply cannot afford to keep carrying the property together. You may wonder whether one owner can make the other go along with a sale.

In Alberta, the answer runs through the Law of Property Act. A co-owner is not stuck forever, but the process goes through the Court, and the result depends on the facts. This article explains the basics in plain terms.

This article covers the law of Alberta.

How co-ownership works on title

Alberta land titles are kept under the Torrens system created by the Land Titles Act. The way you hold title matters. With joint tenancy, each owner has a right of survivorship, so when one owner dies their share goes to the other owners. With tenancy in common, each co-owner holds an individual share, and on death that share goes to the person's estate instead.

Tenancy in common is the default if joint tenancy is not specified. Where land is transferred to two or more people, other than as executors or trustees, they take as tenants in common unless an intention to take as joint tenants sufficiently appears on the instrument. Spouses are treated the same way: where land is transferred to a husband and wife, they take according to the tenor of the transfer, so they are joint tenants only if the transfer says so.

Applying to the Court to end the co-ownership

A co-owner who cannot get agreement may apply to the Court for an order terminating the co-ownership. This is often called a partition and sale application. You do not need the other owner's permission to apply.

If the Court agrees to end the co-ownership, it has three main options, set out in the table below.

What the Court looks at

The Court has discretion, so no outcome is automatic. Some points are written into the Act. If the highest offer on a court-ordered sale is below the market value of the interest, the Court may refuse to approve the sale and make further orders. The Court may also order accounting, contribution or compensation between co-owners, for example where one co-owner was excluded or where waste occurred.

There is also a hardship rule. Despite any agreement between the co-owners, the Court may terminate co-ownership if continuing it would cause undue hardship to one or more co-owners. This can matter if you signed an agreement to stay in the arrangement. Beyond these points, how a court weighs your situation depends on the facts, so a lawyer can tell you how they apply to you.

Options outside of court

A court application is usually not the first step. Co-owners can agree to change how they hold title or to remove a name. To add or remove a name on title, the Transfer of Land form is used, and it must be signed by all current registered owners. That is a practical route if you reach a buyout deal.

Joint tenants have another tool. The Law of Property Act lets co-owners convey interests between joint tenancy and tenancy in common forms, and transferring a joint tenancy to yourself as a tenant in common severs the joint tenancy on registration. The Registrar will not register a transfer that severs a joint tenancy unless all joint tenants sign, the others consent in writing, or they have received written notice by personal or substitutional service. Severing does not by itself sell the property, but it changes what happens to your share on death.

• If the co-owners are spouses or adult interdependent partners, the Court may sever a joint tenancy under the Family Property Act.
• For spouses, a termination of co-ownership under the Law of Property Act is not a disposition under the Dower Act, and an order between two spouses dispenses with Dower Act consent.

What to do next

Start by finding out exactly how title is held. Then think about what outcome you want and whether the other owner might agree to it.

• Get a copy of the current title and check whether it shows joint tenancy or tenancy in common.
• Gather the transfer documents and any written agreement between the co-owners.
• Note any money each owner has put in for the mortgage, taxes, repairs or other costs, since the Court can order compensation.
• Try a written buyout or sale proposal before going to court.
• Check your mortgage terms with your lender, since transfers may be affected by the mortgage contract.
• Speak with a lawyer before filing, especially if you are spouses or partners separating.

Frequently asked questions