Ontario Superior Court of Justice Trials

An Overview of the Partition Act

The Partition Act, R.S.O. 1990, Chapter P.4 enables co-owners of land (and others) to go to Court and ask that the land be divided or sold.

Pursuant to section 2 of the Act, joint owners and tenants in common can go to Court. If a joint owner dies, their ownership passes to the other joint owners. If a tenant-in-common dies, their ownership does not automatically go to any other tenant-in-common (unless there is a will or no will but a family connection or other law resulting in ownership going to the co-owner).

Any co-owner (and other people with an interest in land) may bring an action or application to the Court to partition or sell the land (section 3(1)). Large pieces of land may be capable of being partitioned (divided). Many pieces of land are not capable of being partitioned, such as land in a city with a house or business on it. A forced sale is a common remedy when the co-owners are no longer getting along and at least one co-owner wants to sell. The Court will assess if sale is considered to be more “adventageous”.

When a co-owner dies without a will, there is a one year waiting period until the land can be partitioned or sold (section 3(2)). Also, if a co-owner goes missing for 3 years and it is unknown if they are living or dead, the Court may appoint a guardian for them and proceed with partition or sale (section 4). Similarly, a sale can be validly completed for a co-owner who is a minor (under 18) or incapable of managing their own affairs.

If a sale is ordered, for example of a house or commercial property, then good title passes to the buyer (section 5(2)).

These cases begin in the Ontario Superior Court of Justice (not Small Claims Court) and appeals are to the Divisional Court (section 7).

The Partition Act and the Superior Court’s ability to force a sale have proven a highly useful and valuable solution when co-owners can no longer get along and wish to go their separate ways.

Co-owners who cannot get along should try to speak with the other co-owners to resolve their issues. Going to Court is a last resort that will take time, money and tie up Judicial resources. It is always preferable that co-owners negotiate and work out co-ownership issues, potentially with the assistance of a collaborative law agreement (civil or family) and the potential assistance of a mediator if necessary. Many co-owners are family and/or friends and solving issues without resort to Court is preferable to maintaining these important relationships.

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