How Can Tenants in Common Force a Sale of Shared Property in Ontario?

You own a property with other people and want out, but they will not agree to sell. Perhaps you inherited it together, bought as an investment, or the relationship that led to co-owning has ended. You may wonder whether anyone can force the others to sell.

In Ontario, the Partition Act gives co-owners a court route. This article explains what partition and sale mean, how courts approach these requests, the situations where special rules apply, and the practical steps to consider before starting.

What partition and sale mean

Unless the document that transferred the land shows an intention to create a joint tenancy, land granted to two or more people goes to them as tenants in common, even if they are spouses.

Co-owners are not locked in together forever. Under the Partition Act, joint tenants and tenants in common may be compelled to make or suffer partition or sale of the land. Partition means dividing the land between the owners. Sale means the property is sold and the proceeds are shared.

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. In practice, a sale is often the result when a property cannot sensibly be divided.

How courts decide

The Court of Appeal for Ontario holds that co-owners have a prima facie right to force a sale under section 2 of the Partition Act. That means the starting point favours the owner who wants to sell.

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. Age, illness and claimed hardship were not enough in Inniss v. Blackett.

• If you want to sell, be ready to show you are a co-owner, since co-owners have a prima facie right to force a sale, and the other owner must then show why the property should not be sold.
• If you want to stay, think about what evidence could show the applicant is acting maliciously, vexatiously or oppressively, because personal hardship alone may not be enough.
• Either way, a negotiated buyout is often quicker than a contested application, though that depends on the people involved.

Timing and special situations

Some situations change the rules or the timing. The table sets out those that commonly come up.

If spouses are involved, a sale application may overlap with family law proceedings. How those interact depends on the facts, so it is worth getting legal advice early.

Mortgages and money

Where there are several chargors, the covenants implied 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.

If payments are missed while owners argue about a sale, the lender can move toward power of sale. The default must continue for at least 15 days before notice is given, and the sale cannot happen until at least 35 days after notice. A mortgagor may cure a default by performing the covenant or 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.

How sale proceeds are divided, and who pays carrying costs in the meantime, depends on the facts and any agreement between the owners.

What to do next

• Get a copy of the title documents to confirm how everyone holds title and in what shares.
• Find any written co-ownership agreement and check what it says about selling or buying out an owner.
• Check whether the land was inherited, whether any owner is a minor or incapable, or whether it is a matrimonial home, since special rules may apply.
• Gather mortgage statements and confirm who is on the mortgage and whether payments are current.
• Try a written proposal for a buyout or a joint sale before going to court.
• Speak with a lawyer about whether a partition application is suitable, and how it may be answered.

Frequently asked questions