Forcing the Sale of Real Property

In estate matters, I am often consulted about forcing the sale of real property.  I have seen scenarios where an adult child lived with a deceased parent and refused to leave the estate residence, or a sibling taking the position that the Deceased’s property is really their property and should devolve to them by way of joint ownership.  In Ontario, we have legislation that permits a court to compel the sale of real property.

Section 2 and 3 of the Partition Act states,

2 All joint tenants, tenants in common, and coparceners, all doweresses, and parties entitled to dower, tenants by the curtesy, mortgagees or other creditors having liens on, and all parties interested in, to or out of, any land in Ontario, may be compelled to make or suffer partition or sale of the land, or any part thereof, whether the estate is legal and equitable or equitable only.

(1) Any person interested in land in Ontario, or the guardian of a minor entitled to the immediate possession of an estate therein, may bring an action or make an application for the partition of such land or for the sale thereof under the directions of the court if such sale is considered by the court to be more advantageous to the parties interested. 

(2) Where the land is held in joint tenancy or tenancy in common or coparcenary by reason of a devise or an intestacy, no proceeding shall be taken until one year after the decease of the testator or person dying intestate in whom the land was vested. 

In the 1953 decision of Davis v. Davis, the court found that there is a corresponding obligation on a joint tenant to permit partition or sale, and the Court should compel such partition or sale if no sufficient reason appears why such an order should not be made.

The Ontario Court of Appeal decision in Silva v. Silva, clarified what it meant in Davis as to the sufficient reasons why the court should not grant an order for partition and sale and held that if there is malice, or oppressive behaviour or vexatious behaviour, the court has the jurisdiction to note order the sale of the property.

In my next blog, I will look at the previous court decisions where a court refused to order the sale of a property because malice, oppressive or vexatious behaviour was present.

Thank you for reading. 

Rick Bickhram