Partition and Sale of Co-Owned Property in Ontario: When Co-Owners Disagree

Co-owning real estate works well — until it doesn't. When one co-owner wants to sell and the other refuses, or when a relationship breaks down and the parties cannot agree on anything, Ontario law provides a mechanism to break the deadlock: an application for partition and sale under the Partition Act.

This article explains how partition works, when courts will order a sale, what defences exist, and how a well-drafted co-ownership agreement can reduce the risk of ending up in court in the first place.

What Is a Partition?

A partition is a court-ordered division of co-owned property. In theory, it can mean physically dividing the land into separate parcels — each co-owner receives their portion outright. In practice, for a house or condominium, a literal physical partition is rarely possible. Courts almost always order a sale instead, with the proceeds divided among the co-owners according to their shares.

The statute that governs this is Ontario's Partition Act. It gives any co-owner (whether a joint tenant or a tenant in common) the right to apply to court for partition or sale.

Who Can Apply?

Any person who is a co-owner of real property in Ontario can apply for partition and sale — including:

• A tenant in common who wants to exit the investment.
• A joint tenant who wants to sever and sell.
• A co-owner whose relationship with the other co-owner has broken down.
• An estate trustee (executor) seeking to liquidate a deceased co-owner's interest.

A creditor who has obtained a judgment and is seeking to execute against a debtor's interest in co-owned property can also apply in some circumstances.

The Court's Approach: A Strong Default Toward Granting the Application

Ontario courts treat partition and sale as a prima facie right of any co-owner. The general rule is that an application for sale will be granted unless the respondent (the other co-owner) can demonstrate a compelling reason why it should not be.

This is a high bar. Courts have rejected partition applications where:

• The parties had a written agreement contractually restricting the right to force a sale before a specified time or event.
• There was a dependent child residing in the home whose welfare would be seriously harmed.
• The applicant was acting in bad faith or for an improper purpose.

Absent such circumstances, the court will typically order the property listed for sale.

The Process of a Partition Application

1. Notice: The applicant's lawyer serves a Notice of Application on all co-owners and any parties with registered interests (mortgage lenders, etc.).
2. Evidence: Both parties file affidavits setting out their respective positions, including evidence of the ownership, the breakdown in the co-owner relationship, and any reasons why sale should (or should not) be ordered.
3. Hearing: A judge hears the application. In straightforward cases, this may be dealt with on the paperwork. In contested cases, it proceeds to a hearing with cross-examination on affidavit evidence.
4. Order: If the application is granted, the court orders the property listed for sale. The order will typically specify how the listing is to be conducted, how disputes about the listing price are resolved (sometimes by court-appointed real estate agent), and how proceeds are distributed.
5. Sale proceeds: After the mortgage and costs of sale are paid, the net proceeds are divided according to the co-owners' shares. If there are disputes about those shares (or about amounts owed between the co-owners), those may need to be resolved separately or at the same time.

Adjustments Between Co-Owners at the Time of Sale

A partition application is often combined with a claim for occupation rent or for contribution between co-owners. For example:

• Occupation rent: If one co-owner has had exclusive use of the property while the other was excluded, the excluded co-owner may claim compensation for that period of exclusive use.
• Contribution: If one co-owner paid more than their fair share of the mortgage, property taxes, or maintenance, they may be entitled to reimbursement from the other co-owner's share of the proceeds.

These claims add complexity and cost. Good initial documentation of who paid what prevents many of these disputes.

How a Co-Ownership Agreement Reduces Partition Risk

A co-ownership agreement can include provisions that contractually restrict when a partition application is available. Common approaches:

• Notice periods: A co-owner must give notice before filing a partition application, allowing a cooling-off period for negotiation.
• Mandatory mediation: Before any court application, the parties must attempt mediation with a neutral mediator.
• Buyout right: The co-owner who wants to stay must be given the opportunity to buy out the co-owner who wants to leave, before any forced sale.
• Lock-up period: The property cannot be sold or forced to market for a specified number of years (useful for investment properties or properties bought with shared living arrangements).

Courts will generally respect these contractual terms, and their presence can lead a judge to dismiss or adjourn a partition application that was filed in breach of the agreement.

Frequently asked questions