Breaking up is hard to do

September 21, 2011

Law Day

What happens when one joint tenant (or tenant in common) wants out of a property and the other says no?

There is a piece of legislation in Ontario called the Partition Act that governs the concept of partition and sale, when a court can order that property be apportioned according to interests and one or more portions sold. Any person with an interest in the land can make an application for partition and sale, but judges have the right to refuse to order this remedy, particularly when the party asking for partition has acted dishonestly or maliciously in attempting to sell his or her portion. There is also no right by the person holding on to his or her share to be allowed to purchase the share being sold, with the end result that two strangers could become tenants in common on a piece of property.

Where this is best used is in a situation where one person legitimately wants out of a property and the other person cannot afford to buy him or her out, but won’t sell. A judge can order that the property be sold and the proceeds split between the owners. A common situation might be a divorce, or an inheritance where two people who do not know each other, or perhaps do not like each other, have become joint owners of a property.

This is a remedy that is not commonly ordered, but can be done in exceptional circumstances where it is necessary for a person to get out of ownership of a property.

About Cesia

Cesia is a real estate lawyer at Wall-Armstrong and Green, a boutique law firm in Barrie focusing on real estate and estates. When she's not online, she can usually be found in her garden.

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