Can I Sell My House If a Co-Owner Refuses in Ontario?

You own a property with a sibling, a former partner or another person, and you want out. They do not. Their refusal can leave you at a standstill, but you are not necessarily stuck forever.

Ontario's Partition Act gives co-owners a way to ask a court to split up or sell the land. This article explains who can use it, the special rule for inherited property and what to try first.

Why you cannot simply sell on your own

When two or more people own a property, a buyer will normally expect all owners to sign. Without their agreement, a sale of the whole property is not practical. That is what leaves many co-owners at a standstill.

The Partition Act is designed for this situation. Under s. 2, all joint tenants, tenants in common and coparceners may be compelled to partition or sell the land. In plain words, an owner's refusal does not necessarily end the discussion.

Who can start a partition or sale proceeding

Any person interested in land in Ontario, or the guardian of a minor entitled to immediate possession, may bring an action or application for partition or sale. An appeal from any order under the Act goes to the Divisional Court.

Partition means dividing the land between owners. Sale means selling the property and sharing the money. For a typical house, dividing the land is rarely realistic, so a sale is the more common discussion. Whether a court would order one in your case depends on the facts, and a lawyer can assess that.

Inherited property: the one-year rule

Where land is held by will or intestacy, no partition proceeding may be started until one year after the death. If you and your siblings inherited a family home and one of you wants to sell, you may need to wait before going to court.

Estates have their own rules as well. Property the deceased held without a right of survivorship passes to, and vests in, the estate's personal representative as trustee. So an estate may need to be sorted out before anyone can sell, and the personal representative has a role you should understand first.

There is also a time limit on that arrangement. Real property not sold or distributed within three years of death vests in the beneficiaries, unless the personal representative has registered a caution, which lasts three years and can be renewed. A personal representative may sell real property to pay debts without the beneficiaries' agreement, but a sale only for distribution needs the beneficiaries' agreement, or approval by a majority holding at least half the interests, plus the Children's Lawyer or the Public Guardian and Trustee where relevant. If a minor's interest is affected, a sale needs the Children's Lawyer's written approval or a judge's order.

If the co-owner is an ex-partner

If you and a former partner own a home together, family law rules may matter as well as the Partition Act. A spouse may not sell or mortgage an interest in a matrimonial home unless the other spouse consents, has released their rights, or a court order authorizes it, among the listed options. Separation does not end spouse status for these rules.

Unmarried partners are treated differently. The matrimonial home consent rule uses a definition of spouse that covers married persons, so it does not protect unmarried partners. If you are unsure which rules apply to you, ask a lawyer before you take a step.

If a spouse's consent is needed but cannot be had, a court may authorize the sale or mortgage of the matrimonial home where that spouse cannot be found, is not capable of consenting, or is unreasonably withholding consent. A sale made without the required consent can be set aside, unless the current holder bought for value, in good faith and without notice that the property was a matrimonial home.

What to try first, and what to do next

Going to court is usually slower, more stressful and more expensive than an agreement. Many co-owners first try a buyout, where one owner purchases the other's share, or a negotiated sale. A written agreement between owners can also set timing and how costs are shared.

Before you talk to anyone, find out what is registered against the property. Anyone can search property records on OnLand for a fee. Unpaid property taxes are a special lien on the land that ranks ahead of every other claim except the Crown's. Whether other debts or claims affect a sale depends on the facts, so a lawyer can confirm.

• Get a copy of the title documents to confirm exactly who owns the property and how.
• Write down the mortgage balance, tax status and any other debts on the property.
• Put your proposal to the co-owner in writing: buyout, sale, or timeline.
• If the property was inherited, note the date of death, because of the one-year rule.
• Speak with a real estate or estates lawyer about whether to start a partition or sale proceeding.
• Keep records of what each owner has paid toward the property.

Frequently asked questions