Author: Law365 Co-op Student
In Ontario, there are many benefits to co-owning a house. This has led to co-buying becoming more popular in recent years. One of the important advantages is that the home can be divided ahead of time in the case that there is a split between those who purchased the house. In the case of a separation between a former couple, one may wish to sell the house, while the other does not. If an agreement between the parties is not ultimately reached, one of the co-owners of the property can apply for a partition and sale order.
The Partition Act, 1990 was created to assist in situations like the one discussed above. A partition in this case, refers to the physical distribution of land or property. The Act allows anyone who has an interest in land situated in Ontario to bring an action or application to the court to sell the property. Prior to pushing for the sale of the property, the court will aim to partition the property. If the partition is not physically possible, the court will proceed to push for the property to be sold.
Applicants through the Act are never permitted to use the application to transfer the property to themselves, or for their individual benefit. The Act is meant to be used when two or more parties are separating, and one or more of those parties are unresponsive or uncooperative. The Act can also be used in situations where commercial property need to be sold or partitioned.
In Ontario, any owner has a prima facie right to partition and sale whether it is a common, joint tenant, or one party decision. In other words, the right to partition and sale is accepted as correct until proven otherwise. In this circumstance, the other co-owner(s) are obligated to follow through with the sale unless they can prove that the initiating party does not have the right to partition and sale. Although this rule is generally followed in proceedings, there are extenuating circumstances where a sale cannot be forced.
In cases where the issue consists of joint tenants who are married and have children, there are additional components that go into their rights. As mentioned above, due to prima facie, the initial impression is that the court compels the partition and sale. In this type of case, the opposing tenant can prove that the court should consider the refusal to sell due to unique circumstances. In cases where a party has requested the order for partition and sale to stop, every distinctive factor of each family or joint tenant is considered. This can include, but is not limited to:
Does the party interested in pursuing the sale have any malicious, vexatious or oppressive intent?
Would the sale of the property unreasonably prejudice a family law claim?
If a sale were to be chosen, is affordable housing available to both parties?
If either party has children, how would the potential sale affect the livelihood of the children?
If you are in a situation where you are questioning your rights in a situation where partition and sale is being pushed, book a consultation appointment with us at Law 365.
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