The Partition Act allows any person who has an interest in land situated in Ontario to bring an action or application to the court to have that land partitioned or sold under the courts direction.
There are several principles that govern the partition and sale of land. First, the Ontario Court of Appeal has stated that a person has a prima facie right to partition and sale. This means that anyone with a shared interest in land can force a sale or partition subject only to the respondent’s argument against it. In other words, the responding party carries the onus to demonstrate that a sale or partition should not be provided for.
Second, the court will attempt to partition land first before contemplating a sale. However, where a property is found to be ill-suited for partition or where a sale will be more advantageous to the parties, the court will direct the property to be sold.
Third, the court retains discretion to refuse to sell or partition where the applicant is motivated by malice or vexatious intent. Furthermore, the court may refuse to partition or to sell a property where it would cause oppression to the respondent.
Fourth, and lastly, the Partition Act is not to be used as a tool to transfer title. An applicant is not permitted to have the property transferred to himself or herself, essentially terminating the respondent’s interest without compensation. The Partition Act does not provide the court with the authority to change, transfer or erase interests in property; it merely provides the court with the jurisdiction to force a sale or partition of land. As a result, the courts will order the land be sold on the free market and each party will receive their percentage of the proceeds.
Considering the principles underlying the Partition Act, it is clear that it should be utilized in situations where two parties are separating and one is acting unresponsive, uncooperative and unreasonable with regards to the property. As such, the Partition Act should be looked to in commercial and familial matters where a party requires a property sold or divided.
Matthew Wilson is a real estate and land development lawyer at the London, Ontario law firm, Lerners LLP. See his professional biography for more information about Matthew and his work in the area of land development, or email him at mwilson@lerners.ca.
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