In the recent decision of Athwal v. Athwal, 2025 BCSC 685 [Athwal], the petitioners tried to force the sale of a jointly owned property based in Richmond, BC. The property itself was jointly owned by three family members. Initially, after two of the family members started legal proceedings to force the sale of the property, one of the family members resisted the sale. However, some time later, the resisting family member changed their minds and agreed to sell the property.
Even though the family members all wanted to sell the property, they could not all agree on who should control the sale (also called "conduct of sale") of a co-owned property. Controlling conduct of sale means more than just deciding how to list the property. It allows the party with conduct to select the realtor, the listing price and, importantly, to decide which bid to accept.
In Athwal, the parties didn't have enough trust between them to sell the property together. Two of the three wanted the power to sell it together (just the two of them), the third family member wanted to sell it by themselves. The judge needed to determine who would be granted the power to sell the property they all owned jointly.
Complicating the issue was that the petitioners didn't just want to sell the property, they also wanted to bid on the sale and own the property themselves. This put them in a conflict of interest: they stood to be both the seller and purchaser.
Who Gets Conduct of Sale?
In Athwal, the judge determined that if one set of owners holds a "significantly greater" interest or share in the property, they generally have a better claim to conduct of sale (relative to a minority owner), on the basis that the majority ownership has more at stake in the sale. The judge cited the Court of Appeal case Etemadi v. Maali, 2021 BCCA 298, where it noted that both owners of a property had "a profound interest" in the terms of any sale of the property (at para. 104). While the context in Etemadi was joint ownership as between spouses, the informing principle is that personal interest in the sale arises from an ownership interest.
Based on the above, generally speaking, the greater the interest in a property, the weightier the corresponding personal interest at stake, and by extension, the greater entitlement to sell the co-owned property. In other words, the more of the property you own, the more likely you will be able to receive conduct of sale.
There were other implicit findings of this principle in other cases, such as Zimmerman v. Vega, 2011 BCSC 757 where the petitioners collectively held a 75% ownership interest. In assigning conduct of sale, Justice Shabbits stated at para. 42 "I am of the opinion that it is the plaintiffs that should have conduct of sale. They own a majority interest in the property."
Who Gets to Bid?
The Judge also allowed the majority co-owners to bid on the property, even though there was a potential issue allowing them to be both purchasers and sellers. The judge decided that the majority owners put enough safeguards in place to protect the minority co-owner. In Athwal, and in many other cases, these protections have included orders that an appraisal be conducted and shared with the non-seller, that the non-seller receives regular updates on the sale of the property and that any sale was subject to court approval.
Even though the petitioners would become both the seller and potential purchaser of the property, they had created enough protections for the other co-owner that the conflict of interest could be managed.
Going Forwards
Although this guidance will be helpful for situations where the co-owners cannot cooperate, in many more cases there will be hope for cooperation. There is significant case law that suggests the preference is to provide co-owners with shared or "joint conduct" of sale. This ensures everyone has a say in what happens.
If cooperation is not practical, Athwal provides guidance that when parties compete to have control over the sale of a property, the relative personal interest at stake in the sale, which can be calculated by looking at the parties' ownership interest in the property, can assist the court in choosing which party ought to have sole conduct of sale. A party that has the majority ownership has more at stake in a sale, and as a result, may be the most appropriate party to have sole conduct of sale. In addition, it will be up to the petitioner(s) to ensure the respondent(s) will have sufficient protections in place.
Conclusion
If you find yourself as a co-owner of property and you want to end co-ownership by selling the property, it is best to consult with a lawyer who can provide advice on your legal rights and options. Whatever the level of cooperation, whether you can reach an agreement and want to put it on paper, or if you cannot agree with the other co-owners on whether to sell the property.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
