Selling a home typically comes with a myriad of decisions, like what the price should be and what renovations to make beforehand. Most of the time, however, all owners on the title are on the same page about whether or not to sell the property in the first place. Every once in a while, disagreements can arise. What happens if one person wants to sell a house and the other doesn’t?
Now, the situation has become even more complicated. Today, we’ll answer some of your questions about when and how to force the sale of a jointly owned property in Ontario.
Do you want to simplify the home selling process? Check out one of our comprehensive guides for sellers.
I Own 50% of a Property: What Are My Rights?
Let’s start with a quick disclaimer. We are real estate agents, and while we may have some knowledge on these matters, we are not lawyers. Please take this post for informational purposes only, and always consult with a lawyer for your specific situation.
To a great extent, your rights concerning your ownership of a home depend on how the title was set up at the time of purchase.
- Joint Tenancy gives each owner equal rights to possess and occupy the home. Each owner must be in agreement before the property can be sold.
- Tenants in Common offers a degree of separation between owners. Each share is independent, and one party can sell their portion without the other’s consent or even without them knowing about it.
Both of these arrangements offer some benefits and disadvantages.
Most married couples purchase as Joint Tenants because it offers more protection for each spouse, especially when it comes to inheritance rights. If one spouse passes on, ownership automatically transfers to the surviving spouse without probate.
Under Tenants in Common, the deceased’s share of the property goes to their estate. Probate is required; after which, ownership is transferred to the beneficiary of the Will. This arrangement is more common between friends, siblings, or business partners.
As to how long it will take to force the sale of a property when one person doesn’t consent, there is unfortunately no easy answer. If the courts get involved, it could become an expensive, time-consuming legal battle, lasting several months or even longer.
Selling a home under contentious circumstances can be difficult. The posts below will give you some much-needed insight to help you through it:
- What Are the Challenges of Selling During a Divorce?
- Tough Questions to Ask Your Realtor® When Selling Your House
- What Are the Worst Mistakes When Selling Your House?
Can a Jointly Owned Property Be Sold by One Owner?
If the title is under Tenants in Common, you can sell your share whenever you want. The real question is whether you can find a buyer. Most people searching for a home want it as their primary residence and may not be interested in a partial share.
If you have a home under Joint Tenants, you could technically convert your portion to a Tenants in Common. However, it can still be difficult to sell only part of an interest in a home.
To sell the entire property without your partner’s agreement, you will need to file an application for a Partition and Sale. (A partition and sale is the legal process that allows a co-owner of any asset to force a sale. It happens when one person wants to sell and the other doesn’t, or if the owners cannot agree on how to manage the property.)
Rules Vary By Property Type
If the home is a second property or an investment, the courts may be inclined to grant your request. The house can then be sold and any proceeds will be divided up between the owners. The Partition Act is a prima facie right in Ontario, which means the courts generally side with the party making the request, with some notable exceptions:
- If the other owner can prove the applicant is acting with malicious or oppressive intent.
- If the house is the matrimonial home.
A matrimonial home falls under the Family Law Act. You can still apply for a partition and sale, but it’s more complex, especially during a divorce or separation. You should always consult with an experienced lawyer to advise your next steps.
Planning to buy a house once this situation is behind you? The posts below will help prepare you for success:
- How Much Does It Cost to Buy a House
- Title Insurance in Canada: What It Is, Why It Matters & How We’ve Got You Covered
- Checklist for Buying a Home
Cost of Partition Action in Ontario
The odds of the courts granting your request are high, but a partition and sale application can have a significant cost involved. There is no one flat fee. The total cost will depend on the situation and how serious the dispute becomes.
Legal fees will be the most substantial expense, potentially amounting to thousands of dollars if the case is contested. There will also be court fees and disbursements and an application filing fee.
This brings us to the question, who pays for partition action? Ontario typically requires whoever loses the lawsuit to cover at least a portion of the legal costs, though the exact percentage can vary. However, if the courts deny your application, you’ll be responsible for your own costs and potentially for a portion of your co-owners.
Legal expenses can be extremely prohibitive. It’s always better to come to an amicable agreement out of court whenever possible. Working together for a resolution will be faster, less expensive, and far less stressful for everyone involved.
Do you need personal advice when it comes to selling your home? Our top Guelph real estate agents are here to answer all of your questions. Get in touch today at info@gowylde.ca or call 519-826-7109.
