Can a Tenant in Common Sell Their Share Without the Other Owner?

You own a share of a home with someone else and want out, but the other owner does not. Can you sell just your share, and do you need their permission? This is one of the most common questions co-owners ask.

The honest answer is that it depends on how you hold title, what your co-ownership agreement says and the facts of your case. This article explains what Ontario's guidance does say, what the other owners can do, and where to get legal advice before you act.

Start with how title is held and what you signed

Co-owners hold shares as tenants in common or as joint tenants. A tenant in common's share can be equal or unequal and does not pass automatically to the other owners on death, while joint tenants' shares pass to the survivors. Check your deed and any agreement first, because they shape your options.

Ontario's guidance says a co-ownership agreement should address how owners enter and exit. Exit terms include how fair market value is set and whether the other owners, a third party or a sale will take a departing share. If you signed an agreement like this, it is the first place to look. It may set a process, a price method or a first chance for the others to buy.

Whether a tenant in common can sell or mortgage their own undivided share without the other owners' consent, and the steps to do so, is a question to confirm with a real estate lawyer. The answer can turn on your title, your agreement and the facts.

If you own as joint tenants

Joint tenancy can be severed. Severing a 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 for the courts.

This matters before any sale. If you are a joint tenant, your share would pass to the survivors on death, so the way your ownership is structured affects what you are able to sell and what happens to it afterward. Take advice before registering anything.

What the other owners can do

If you try to leave and the others disagree, several routes are possible, depending on the agreement and facts.

• Follow the exit terms in the co-ownership agreement, which may give the others the option to buy or may set how value is determined.
• Use any mediation or arbitration clause the agreement contains.
• Apply to court. Joint tenants and tenants in common may be compelled to make or suffer partition or sale of the land.
• Ask for an accounting of money paid. Courts have considered occupation rent, reimbursement of mortgage and property tax payments, and unequal contributions when dividing proceeds.

The right to seek a court-ordered sale belongs to those with possession or an immediate right to possession. The Court of Appeal has also said a co-owner has a prima facie right to force a sale, and that the court's discretion to refuse is narrow.

Finding a buyer and what a buyer will ask

A buyer of a partial share is buying into a relationship with the other owners. Many buyers and lenders will want to understand the agreement, the other owners' positions and the exit terms. These practical points are worth raising with your lawyer early.

Also consider who the buyer is. Ontario's non-resident speculation tax is 25% and applies to the full consideration if any transferee is a foreign entity or taxable trustee, with each transferee liable. Some exemptions exist, such as for nominees under the Ontario Immigrant Nominee Program and spouses of Canadian citizens or permanent residents. The federal Prohibition on the Purchase of Residential Property by Non-Canadians Act also bars certain non-Canadians from buying residential property, subject to exceptions. Its timing and scope should be checked at the time of any sale.

What to do next

• Get a copy of your deed and any co-ownership agreement.
• Read the exit and dispute sections before telling anyone you plan to sell.
• Gather records of what each owner has paid toward the mortgage, taxes, insurance and repairs.
• Talk to the other owners first; a negotiated buyout is often simpler than a court case.
• See a real estate lawyer before you list, sign an agreement of purchase and sale, or register anything on title.

Frequently asked questions