As homeowners continue to work from home in response to the provincial lockdowns and stay-at-home orders, some are realizing that they need more space. Others appreciate that they will continue to work from home indefinitely and living in the city may no longer be necessary as they may be able to afford a home located further away from the downtown core. The realty of the pandemic seems to have caused an increase of homeowners interested in living in less dense areas. For those who are interested in selling, you may be wondering how you can proceed with the sale of your property where co-owners with an opposite opinion are involved. In this article, Walker Law real estate lawyers aim to provide you with a response as well as a brief overview of the Partition Act.
How is Property Owned in Ontario?
Two of the most common forms of concurrent property ownership in Canada are joint tenancy and tenancy in common.
Joint tenants own an equal, undivided interest in the whole property, and when one joint tenant dies, that person’s interest is automatically transferred to the remaining owner(s) by right of survivorship. It is very common for married or common-law spouses to hold real property as joint tenants since, upon the death of one spouse, a will is not required to transfer the property to the surviving spouse.
Tenants in common also each own an undivided interest in the land. The main difference between joint tenants and tenants in common is that percentages of interest do not need to be equal for tenants in common and there is no right of survivorship.
What is the Partition Act?
The Partition Act is a legal statute that reflects and reinforces the common law right to keep or dispose of one’s real property. It also allows a co-owner with interest in a property to apply to the court to enforce the sale of real property, even if another co-owner does not want to sell.
Dutton v. Dutton
The court reaffirmed its long-standing position that a joint tenant has the right to the sale of property and the corresponding obligation of a joint tenant to permit the partition and sale if there is no sufficient reason why the order should not be made. In this case, an elderly couple jointly owned a condominium in Mississauga. Both the husband and wife sustained falls that required hospitalization and they were eventually transferred to a long-term care home. After moving into a nursing home, the couple came to the conclusion that they could not afford to pay for the nursing home and maintain their condo. The husband had a Public Guardian and Trustee (“PGT”) appointed to represent him as he had severe dementia and needed around-the-clock care.
The PGT attempted to have conversations with Mabel, the wife, about how they would handle her husband’s care and the need to sell the condo to cover the debts at the nursing home. Mable maintained that they would eventually return home and did not want to sell.
Despite this, the PGT continued to obtain valuations from realtors, listed the property for sale, and received confirmation from Mable’s Continuing Power of Attorney (“POA”), her son, that he should proceed to sell the property. Mabel eventually found out that the home had been listed for sale through staff at the nursing home and formally revoked her son’s POA and refused to proceed with the sale of the home. PGT subsequently brought an application under the Partition Act to sell the condo without Mabel’s consent.
The court found that PGT’s application for the sale of the property was fair and acted in the husbands’ best interests given that the property was his only remaining asset and he needed to satisfy the debts and secure his future at the nursing home with the funds from the property.
How Walker Law Real Estate Litigators Can Help
If you are interested in selling your property and believe that some problems may arise or have any questions about the Partition Act, please contact Walker Law real estate litigators. Please note that this article is intended for educational purposes only. It contains general information about legal matters and should not be considered legal advice.