It often starts with a good reason. Two brothers pool their money to buy a house in Brampton because neither qualifies alone. A mother goes on title to help her daughter get a mortgage. Three friends buy a rental property as an investment. Years later, one wants out, one cannot afford a buyout, and another refuses to speak to anyone. The obvious question arises: can I make them sell?
In Ontario the general answer is yes, and that surprises many people. A co-owner has a strong starting right to ask a court for an order that the property be divided or sold. A court’s power to refuse is narrow. Yet getting the order is often only half the battle. The harder fight is frequently about who is owed what from the proceeds, and for married couples, different rules come into play.
This is general information about Ontario law, not legal advice. Title documents, written agreements and family relationships can change the analysis substantially.
Start With How You Hold Title
Look at the deed or transfer. Co-owners in Ontario hold title as either joint tenants or tenants in common.
Joint tenants own the whole together. If one dies, the survivor generally takes that owner’s share automatically, outside the estate. Tenants in common each hold a distinct share, which may be unequal, such as 70/30, and which passes through the estate on death.
Both kinds of co-owner can seek partition or sale. Your title form affects who can claim what on death, and it can affect arguments about the shares. It is also not always the last word on who really owns what. A person on title only to help someone qualify for a mortgage may, on the evidence, hold their interest in trust for the person who actually paid. Claims like this, known as resulting trust claims, can dramatically change a dispute. A father who is on title with 50% might be found to have no real beneficial share at all, or the reverse. Bank records and communications from the time of purchase are what usually matter.
The Partition Act in Plain Language
The governing statute is short and old. Under section 2 of the Partition Act, joint tenants, tenants in common and others with an interest in land may be compelled to make or suffer partition or sale. Under section 3, any person interested in land in Ontario may bring an action or application for partition, or for a sale under the court’s directions if a sale would be more advantageous to the parties.
There are two different remedies here. Partition physically divides the land. Sale means selling the whole and dividing the money. A detached house on a standard Brampton lot can rarely be cut in two, so sale is by far the more common outcome for residential property.
Courts have described this as a prima facie right. A co-owner does not usually need to prove why they want to sell, or that the other side did anything wrong. Being tired of the arrangement is often enough.
There is a one-year wait in one situation: if the land is held in joint tenancy or tenancy in common because of a will or intestacy, no proceeding may be taken until one year after the death of the person in whom the land was vested. This comes up when siblings inherit their parents’ home.
When a Court May Refuse
The court’s discretion to refuse is real but narrow. The Court of Appeal has said an order should be refused where the party seeking sale is acting in a way that is malicious, vexatious or oppressive, or has an inequitable purpose, as shown in decisions such as Latcham v. Latcham (2002). The hardship of being forced to move is not enough on its own. Nor is the fact that a sale may be inconvenient, emotionally painful or at a bad point in the market.
The bar is high. Situations in which it might be argued include:
- A clear agreement not to sell, or to sell only under particular conditions, or that a person may live in the property for life. Courts have treated this kind of promise seriously.
- A sale proposed for an improper motive, such as forcing a vulnerable co-owner into hardship purely to gain a bargaining edge.
- Serious conduct by the applicant connected to the property, such as stripping its value.
- Where a sale would deprive a party of a substantial right that cannot be protected otherwise.
Agreements matter most in practice. A co-ownership agreement that sets out a buyout process, a right of first refusal or a waiver of partition rights might be enforced. It may require you to follow that process before going to court, and it may give you a useful tool if the dispute goes badly. If you do not have one, that is one good reason to consider a written agreement before any future shared purchase.
Spouses, Former Spouses and the Family Law Overlap
If the co-owners are married or were married, the matter moves into family law territory. The Court of Appeal in Silva v. Silva (1990) held that a partition application should not proceed where it would prejudice a spouse’s rights under the Family Law Act, and that it may be deferred until those claims are determined. Claims for possession of a matrimonial home or to equalize net family property could otherwise be defeated. Section 12 of that Act also allows a court to make orders preserving assets.
Common-law partners don’t have the same statutory property regime, but the Partition Act is commonly used in their cases too, often along with unjust enrichment or trust claims. Children’s needs can also raise other issues. If you separated from a partner, it’s sensible to get advice from a family law and divorce lawyer before starting a partition proceeding, as a different process may be required.
How the Process Usually Runs
Many of these cases proceed by application in the Superior Court of Justice, which sits in Brampton at 7755 Hurontario Street. An application is decided mainly on affidavit evidence rather than at a full trial, although a judge can direct a trial of disputed issues, such as a contested trust claim. Small Claims Court cannot order a sale of land.
The usual sequence looks something like this:
- A lawyer’s letter proposes a buyout or a voluntary listing. Many disputes settle at this stage, often once the cost of court is apparent.
- If that fails, an application is issued and served, with affidavits setting out the title, the history and the proposal.
- The respondent files evidence opposing it, or agreeing to sell but disputing the accounting.
- At the hearing, a judge may order a sale with directions about the listing agent, price, carriage of sale, the handling of offers, and access for showings.
- Net proceeds, or the disputed part of them, may be held in trust until the accounting is resolved.
A court can decide who has carriage of the sale, and it can grant an opportunity for one owner to buy out the other at an appraised value, depending on the circumstances. There is no automatic right to buy out the other party at a price of your choosing, though. An order may include terms making it easier to complete the sale over a reluctant co-owner, for instance by authorizing someone to sign on their behalf if they refuse to cooperate.
Who Gets What: The Accounting
Equal title does not always mean equal cheques on closing day. Once the property is sold, or sometimes before, co-owners may ask for an accounting that adjusts their respective shares. Depending on the case, it can involve:
- Down payment contributions. These can be important evidence about the parties’ intended shares, particularly in a resulting trust claim.
- Mortgage principal payments. Someone who paid more than their share of principal may claim credit.
- Property taxes, insurance and repairs. Payments made to preserve the property may be credited, subject to what the parties agreed.
- Improvements. A new roof may be recoverable, typically to the extent it increased the value of the property, which is not the same as what it cost. A luxury kitchen that added less than its cost may not be fully recovered.
- Rental income. A co-owner who collected rent may need to account for it, particularly the part attributable to the other’s share.
- Occupation rent. This is a charge against a co-owner who lived in the property and excluded the other from it. It is not automatic. Courts may award it where it would be equitable and reasonable, and they commonly look at whether the non-occupying owner was truly ousted, and at what offsetting payments the occupying owner made.
These issues need paper. If you are in this position, gather what you can: bank statements showing mortgage and tax payments, receipts for work, appraisals, rent ledgers and written communications about who would pay for what. People often try to rebuild this from memory many years later, and the result is usually unsatisfactory. Limitation periods may also apply to some monetary claims between co-owners, so old grievances should be checked sooner rather than later.
The Mortgage and Other Practical Traps
Everyone on the mortgage generally stays responsible to the lender until it is paid out or until the lender releases them, regardless of any private arrangement. If your co-owner stops paying, the lender can look to you. A default could start a power of sale process, which can erode the equity for both of you. Keep paying if you can and keep records of what you paid, so that you can claim the amount later.
A few other cautions:
- Don’t change the locks on a co-owner without advice. Each co-owner generally has a right to possession. Exclusion may strengthen a claim for occupation rent against you.
- Be careful with tenants. A tenant has rights under the Residential Tenancies Act, 2006, and a sale does not end them. Plan with this in mind.
- Do not sever or transfer on impulse. Severing a joint tenancy can have significant effects on what happens if a co-owner dies. It may be useful but should be done with advice, particularly in spousal situations.
- Taxes count. The sale of a property that is not the principal residence of all owners can trigger capital gains tax and other consequences. Get accounting advice before you settle on a split.
Try to Reach a Deal First
A partition fight costs money, and the costs come from the same pot you are arguing about. Court timelines can also leave you paying carrying costs during a slow process. Most of these disputes are ultimately about numbers, so an early proposal can be valuable. It might set out two independent appraisals, a time-limited option for one party to buy, and otherwise a listing with an agreed agent and an agreed price process. A formal offer to settle can also help put costs pressure on an unreasonable co-owner.
Mediation can be especially useful in family settings, where siblings or a parent and child may want some kind of relationship once the house is gone. It lets you deal with things a judge may not, such as timing around a school year, sentimental property or a parent’s right to remain for some agreed period.
If you are trying to get out of a co-ownership, or you have been served with an application, begin by pulling title and gathering your payment records. Our page on real estate and mortgage litigation outlines related disputes, and you can contact our Brampton office for a review of your documents. The law gives most co-owners a way out. The sensible aim is to use it at a cost that leaves something worth dividing.