Forcing the Sale of a Home
I have a court hearing scheduled in a few weeks to address what seems to be a common problem: two people own a home and one of them refuses to sell. In the case that I am involved in, I am acting for the owner who wishes to sell.
Whether in the context of an estate dispute or in family law, it is not uncommon for such a problem to arise. Often, the party who refuses to sell seeks to buyout the other’s interest (surprisingly, the offers in this regard are often for less than market value). The property in question is often the family home or a cottage.
If no agreement can be reached, the owner who wishes to sell can ultimately make application to the court for an order compelling a sale.
Under the Partition Act, a property owner has a prima facie right to an order for the partition and sale of lands held with another owner. The other owner, in turn, has a corresponding obligation to permit the sale. Pursuant to the Act, the court is required to compel the partition and sale if no sufficient reason can be shown why such an order should not be made.
The case law provides that the court’s discretion to refuse an order for sale is limited and is usually reserved for cases which involve malicious, vexatious or oppressive conduct. The party who opposes the sale of course has the onus of demonstrating why the sale should not be ordered.
Thanks for reading,