What Does Partition And Sale Mean?
When two or more parties co-own a property, one party may wish to sell the property. This often applies to residential properties; however, it applies to most real estate. If the other owner(s) refuse to agree to the sale, a party may apply to the courts for the forced sale of jointly owned property. We refer to this process as the partition and sale of real estate in Alberta. This situation occurs more frequently than people think. If you need to end a co-ownership situation, connect with the Calgary and Edmonton lawyers at Kahane Law Office. We help make the process easier for you.
What Law Governs Partition And Sale In Alberta?
In Alberta, the governing law for partition and sale is Part 3 of the Law of Property Act, R.S.A. 2000, c. L-7. The government recognizes that these situations occur and developed legislation governing it. Typically the government and the courts do not force people to own property together unless compelling reasons exist to do so.
Partition is the physical division of the land and is the oldest remedy. These laws have roots stemming from the Partition Act, 1539, 31 Hen. VIII c1 (U.K.) and the Partition Act, 1540, 32 Hen. VIII c32 (U.K.). It was not until hundreds of years later, in 1868 with the enactment of the Partition Act, 1868, 31 & 32 Vict. c.40 (U.K.), that a court was permitted to order sale instead of partition. Currently, the courts hear these applications on a regular basis. The remedy of partition and sale remains a recurring order issued by the courts throughout Alberta.
How To Apply For Termination Of Co-Ownership?
Under section 15(1) of the Law of Property Act, a co owner – a joint tenant or a tenant in common of an interest in land – may apply to the Court for an order terminating the co ownership. Section 15(2) enumerates three remedies a court can choose between:
15(2) On hearing an application under subsection (1), the Court shall make an order directing
(a) a physical division of all or part of the land between the co owners,
(b) the sale of all or part of the interest of land and the distribution of the proceeds of the sale between the co owners, or lastly
(c) the sale of all or part of the interest of one or more of the co owners’ interests in land to one or more of the other co owners who are willing to purchase the interest.
When a co-owner of land requests termination of the co-ownership, the court must make one of the three orders permitted under section 15(2) of the Law of Property Act – physically dividing the land between the co-owners; selling the land and dividing the proceeds of the sale between the co-owners; or selling the land to one of the co-owners. As there is nothing in the Act to suggest how a court should decide which remedy to order, the court is left with a broad discretion to make this decision.
How The Court Decides Whether To Order Partition, Sale Or Sale To A Co-Owner?
Outside of the matrimonial context, there are few Court of Appeal cases on partition and sale. One that does provide some guidance on how a court decides is Ross v. McRoberts, 1999 ABCA 227. Here, the Court of Appeal noted the “use of the words ‘shall’ and ‘or’ in s.15(2) suggests the mandatory as well as disjunctive nature of the three possible directions…”. The case involved an appeal from an order compelling the appellant to sell his interest to the respondents – an order under section 15(2)(c). The Court of Appeal stated that the lower court had chosen “the most logical and reasonable option” (para. 16) and that he chose “the only realistic option open to him” (para. 22). The appeal was dismissed.
Ultimately, fairness, or what is “the most equitable for all of the parties”, is also considered (Sheffield Welding and Fabricating Ltd. v. 958760 Alberta Ltd., 2003 ABQB 181 at para. 15; Polanski v. Roth, 2008 ABCA 378).
Partition And Sale Of Alberta Matrimonial Homes
The question over what to do with a family home is one of the biggest decisions a couple will make when separating or divorcing. Often, separated couples cannot agree on how to handle the family home. This presents 3 potential legal options:
- Partition and Sale. The issue of whether the matrimonial home should be sold.
- Exclusive Possession of the Matrimonial Home. The question over which spouse should remain in the matrimonial home.
- Occupation Rent. This is where one spouse is responsible for paying the expenses of the Matrimonial home since they are the only spouse living in the home.
For partition and sale in Alberta, each spouse has a presumed right under s. 15(2) of the Law of Property Act to request the Court to order the sale of the home, which the Court has a relatively broad discretion to decide on.
The laws with respect to dividing property is somewhat different than with people who simply co-own. IE, people not in a relationship. Always consult with a Calgary family law lawyer or an Edmonton family law lawyer (depending on where you live) for help with understanding your risks and rights when it comes to matrimonial property division.
Alberta Lawyers To Force The Sale Of Co-Owned Property
Kahane Law Office has offices in both Calgary and Edmonton, Alberta. We help with partition and sale applications from the appropriate judicial center. We act for clients who wish to end the legal co-ownership of jointly owned property. Further, we also act for people served with a notice of such an order or looming application. Depending on the situation, our civil litigation, family law and /or real estate legal teams act in unison. This allows us to offer service at a reasonable cost and with exceptional service. Call today for help or a consultation. For the quickest response, email often works best. Please email both our locations directly here. We also enjoy hearing form our clients on the phone. In Edmonton and neighbouring communities, please call (780) 571-8463. In Calgary, please reach us directly at 403-225-8810. We look forward to hearing from you.