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
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
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
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 thePartition 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, thePartition Actshould be looked to in commercial and
familial matters where a party requires a property sold or
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 firstname.lastname@example.org.
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