Can a Tenant in Common Be Forced to Pay Their Share of Costs in Ontario?

You are paying the mortgage, the property taxes and the repairs on a property you own with someone else, and the other owner is not contributing. You may be wondering whether you can make them pay, or whether your share should change.

This article explains how co-ownership works in Ontario and where the law stops. How to recover what you have paid depends on your agreement and your facts, so a lawyer should review your situation before you act.

What being a tenant in common means

Unless the document shows an intention to create a joint tenancy, land granted to two or more people goes to them as tenants in common. This applies even if they are spouses. Each owner holds a share, and there is no right of survivorship on a tenancy in common.

If the owners did not hold title as tenants in common from the start, a joint tenant can sever the joint tenancy alone by signing and registering a transfer to themselves, without the other owner's consent. The exception is a matrimonial home: a spouse may not dispose of or encumber an interest in it unless the other spouse joins or consents, has released their rights by separation agreement, or a court order authorizes it. In the land titles system the transferee is then shown as a tenant in common with the other owners, and survivorship ends for that share.

Why you may be on the hook for the whole mortgage

Where there are several chargors, the covenants in a registered charge, including paying the mortgage money, are made jointly and severally unless the charge says otherwise. Each co-owner can therefore be liable for the whole debt. That is why the lender can look to you when the other owner does not pay.

If payments fall behind, the default must continue for at least 15 days before power of sale notice is given, and a sale cannot happen until at least 35 days after notice. A mortgagor may cure a default by paying the amount due. During the notice period, no further proceeding to enforce the mortgage may be started without a Superior Court of Justice judge's order.

Recovering what you paid and adjusting shares

Many co-owners have a written agreement covering shares, expenses, buyouts, rights of first refusal and what happens on death. These terms are matters of contract, so the wording of your agreement matters most. If you have none, whether and how you can recover the extra amounts you paid, or adjust the shares, depends on the facts and is something a lawyer should confirm.

• Keep records of every mortgage, tax and repair payment, with dates
• Record what the other owner has paid, if anything
• Find any co-ownership agreement, declaration of trust or emails about who pays what
• Write down any rent or other income the property earns and who received it
• Put your request for contribution in writing

When a forced sale is the option

Joint tenants and tenants in common may be compelled to make or suffer partition or sale of the land. Any person interested in land in Ontario may bring an action or application for partition, and the court may order a sale instead if that is more advantageous.

The Court of Appeal for Ontario holds that co-owners have a prima facie right to force a sale. The party resisting must show why the property should not be sold, and the court refuses only if the applicant is acting maliciously, vexatiously or oppressively. In Inniss v. Blackett, age, illness and claimed hardship were not enough.

• Where land passed by will or on intestacy, no partition proceeding may be taken until one year after the death.
• A court-ordered partition or sale is effective to convey the interests of minors and of persons incapable under the Substitute Decisions Act, 1992.
• An appeal from any order under the Partition Act goes to the Divisional Court.

Spouses and the matrimonial home

A spouse may not dispose of or encumber an interest in a matrimonial home unless the other spouse joins or consents, has released their rights by separation agreement, or a court order authorizes it. A transaction in breach may be set aside. How a sale or partition application fits with a separation or other family law matters depends on your situation, so it is worth confirming with a lawyer before starting one.

What to do next

• Keep paying the mortgage if you can, since a default can lead to power of sale
• Gather your payment records and any written agreement
• Ask the other owner in writing to contribute or to agree on a buyout
• Speak with a lawyer before applying for partition or sale

Frequently asked questions