Forcing a Sale: Partition of Co-Owned Property in Ontario

When a relationship ends, or when relatives inherit a property together, one co-owner may want to sell while the other refuses. Being stuck in that position is stressful, especially when one person is paying the bills.

Ontario's Partition Act gives co-owners a route to the courts. This article explains in plain language how it works, how much room a court has to say no, and how money paid by each owner can be treated. It is general information and not a substitute for advice.

What the Partition Act allows

Under section 2 of the Partition Act, joint tenants and tenants in common may be compelled to make or suffer partition or sale of the land. Under section 3(1), a person interested in land may bring an action or application for partition or for sale, if the court considers sale more advantageous to the parties interested.

In plain words, partition means dividing the property, and sale means selling it and sharing the money. With a house or condo, dividing it physically is rarely practical, so a sale is the usual result people are talking about.

How hard is it to resist a sale?

The Court of Appeal has said a co-owner has a prima facie right to force a sale under section 2. The onus is on the party resisting sale to show the property should not be sold. A court may refuse only if the owner seeking sale is acting in a malicious, vexatious or oppressive fashion.

The court has described its discretion to refuse a partition order as narrow. It has also held that age and illness did not justify refusing a sale in one case. Wanting to keep the home, or disliking the timing, is unlikely to be enough on its own, though the result always depends on the facts.

Who gets what when the property is sold

A sale does not always mean an equal split. In one case the Court of Appeal ordered the property sold with net proceeds divided equally, awarded occupation rent for one owner's sole use of the lot, and said the co-owner who paid the mortgage and property tax may be entitled to reimbursement.

In another case, tenants in common held title and one paid the carrying costs: taxes, mortgage, insurance and repairs. The court imposed a constructive trust giving him 65% of the property's value and ordered a sale under the Partition Act. Contributions far above what a tenant would pay in rent justified more than an equal split.

These examples show that who lived in the property and who paid for it can matter as much as who is on title. Whether any adjustment applies to you depends on the facts, such as unjust enrichment, occupation rent and any agreement between you.

How your ownership structure matters

The Partition Act applies to both joint tenants and tenants in common. If you hold as joint tenants and want to change that, severing the joint tenancy by one owner's unilateral action, such as registering a transfer to themselves, converts that share to a tenancy in common. A charge registered by fewer than all joint tenants does not by itself sever, and intent to sever is a question of fact.

If there is a written co-ownership agreement, check it before going to court. Ontario's guidance says good agreements cover mediation or arbitration for disputes, and how owners exit, including how fair market value is set.

What to do next

• Pull together the deed, mortgage statements, tax bills, insurance and repair receipts.
• Write a timeline of who has lived in the property and who has paid what.
• Look for any co-ownership agreement, and for dispute or exit clauses in it.
• Consider offering a buyout or a negotiated sale first; it is usually faster and less costly than court.
• Speak with a real estate or litigation lawyer before you stop paying, change the locks or serve anything on the other owner.

Stopping payments or acting unilaterally can hurt your position. Get advice on your facts before taking a step you cannot undo.

Frequently asked questions