A falling out, disagreement or dispute between co-owners of land can be stressful and confusing for those involved. Many co-owners may believe that they are effectively “stuck” in the co-ownership arrangement. In Ontario, this is often not the case.
A person who holds land as a joint tenant, tenant in common or coparcener has a prima facie right to compel partition or sale of the jointly owned property. Co-owners and other parties with an interest in land generally must submit to partition or sale unless the party opposing the remedy can show that the party seeking partition or sale is acting maliciously, vexatiously, or oppressively.
The Partition Act, R.S.O. 1990, c. P.4 (the “Partition Act”), provides statutory relief where co-owners disagree about whether jointly owned property should be divided or sold.
Who can Compel Partition or Sale of Land?
Any person interested in land in Ontario may bring an application for partition or sale of that land.1 This can include joint tenants, tenants in common, beneficial owners, or in appropriate circumstances, a litigation guardian of a minor entitled to the immediate possession of an estate.
The courts have, however, restricted the rights of bare trustees registered on title to bring applications for partition or sale where they hold legal title only and have no beneficial interest or independent authority over the property.2
When will a Partition or Sale of Land be Denied or Delayed?
Furthermore, the Partition Act provides that all joint tenants, tenants in common, and all parties interested in any land in Ontario may be compelled to make or suffer partition or sale of the land.3 Given that there exists a prima facie right to compel partition or sale, generally, partition or sale will be granted if sought by a co-owner.
The court, however, has discretion to refuse an order for partition or sale. This discretion is exercised sparingly and is generally limited to situations where the party seeking partition or sale has acted maliciously, oppressively or vexatiously towards the other parties.4
The onus is on the party opposing partition or sale to show why the remedy should not be granted. The burden of proof is high; mere disappointment, inconvenience or the fact that a sale may be unwelcome will usually be insufficient. 5 Hardship may justify refusal only where it rises to the level of oppression in the circumstances.
Family law and estate proceedings may further delay partition or sale applications until the court is satisfied that ordering partition or sale will not prejudice a co-owner’s rights in a related proceeding.6
The Court’s Role in Partition
Rule 66.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides that money realized from the sale of land in a partition proceeding must be paid into court unless the parties agree otherwise and no money may be distributed or paid out except by order of a judge or, on a reference, by order of the referee.7
The court controls much of the sale process; sale proceeds are commonly held by the court pending final order or agreement between the parties. Disputes often arise over how net sale proceeds should be distributed. Co-owners may claim more than their registered ownership where they advance claims based on unjust enrichment, resulting trust or constructive trust. It is important to contact a lawyer if there is a disagreement regarding the distribution of sale proceeds.
Conclusion
Overall, Ontario law broadly recognizes a co-owner’s entitlement to seek partition or sale when shared ownership is no longer practical or workable. While the court retains discretion to refuse partition or sale, that discretion is exercised sparingly. Refusals are uncommon where an applicant has a valid interest in the property, and the opposing party cannot establish malice, oppression or vexatious conduct.
Generally, the court will not force co-owners to remain in an unwanted ownership arrangement indefinitely. However, each case is fact-dependent, and it is important to seek legal advice about your ownership rights and available remedies.
Footnotes
1. Partition Act, R.S.O. 1990, c. P.4 (“Partition Act”) at s. 3
2. Weise v. Weise, 2023 ONSC 5227 at para 48.
3. Partition Act at s. 2
4. Greenbank Power Corp. v. Coinamatic Canada Inc., [2004] O.J. No. 5158 at paras 1-3.
5. O’Brien v. McGilvray, 2018 ONSC 2442 at para 13.
6. Alford v. Dunits, 2022 ONSC 7111 at paras 12-13.
7. Rules of Civil Procedure, R.R.O. 1990, Reg. 194 at r. 66.03
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.
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