Owners of property have a prima facie right to an order for partition and sale.

In the recent decision of Sauve v. Davidson[1] , the Ontario Superior Court reviewed the basic principles that give rise to such orders, and enumerated terms to be contained therein.

Facts

The applicant inherited his Deceased spouse’s portion of a property (the “Property”) jointly owned with the Deceased’s brothers (the “Brothers”).

The applicant, both personally and through counsel, sent correspondence to the Brothers, gauging their interest in purchasing the applicant’s inherited portion of the Property, falling which an application for partition and sale would be brought. The applicant received no response from the Brothers and commenced the application for partition and sale.

Granting the order, a basic review of the principles underlying partition and sale were set out, including that:

• Owners of property have a prima facieright to an order for partition and sale;[2] 
• A request for partition and sale made by an owner will be denied only in exceptional circumstances;[3]
• Discretion empowers the court to refuse partition and sale where the requesting party has engaged in malicious, vexatious, or oppressive conduct;[4]
• The party opposed to partition and sale bears the onus of demonstrating that the requesting party engaged in malicious, vexatious, or oppressive conduct;[5]  and
• A request for an order for partition and sale does not constitute malicious, vexatious, or oppressive conduct.[6]

The court then went on to describe the terms contained in the associated order for partition and sale, including terms relating to:

1. The Property being listed for sale;
2. The discretion available when selecting a real estate agent, marketing, and selling the Property;
3. The necessary consents required during the listing, marketing, and sale of the Property;
4. The requirement of the parties to execute any documents necessary for the listing, marketing, and sale of the Property;
5. The discretion available when selecting a lawyer to act for the parties in the closing of the sale of the Property;
6. The proceeds of sale being used to pay all reasonable costs incidental to the sale, including legal and real estate fees;
7. The proceeds of the sale being held in trust by the lawyer acting on the sale pending further court order or agreement of the parties;
8. The cost allocation of the within application; and
9. The right of the parties to return for an accounting of the net proceeds of sale from the Property.

Concluding Comments

While individuals with an interest in property are afforded a prima facie right to partition and sale, a successful challenge may be mounted where an opposing party satisfies their onus of demonstrating malicious, vexatious, or oppressive conduct.

Where such orders are granted, the terms contained therein should carefully set out the discretion and cooperation necessary throughout each stage of the process.

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[1] Sauve v. Davidson, 2024 ONSC 2091.

[2] Rennie v. Rennie et al., 2019 ONSC 2948, at para. 25, citing Afolabi v. Fala, 2014 ONSC 1713, 46 R.F.L. (7th) 75, at para, 27.

[3] Rennie, at para. 26; and Duong et al. v. Duong, 2021 ONSC 4627, at para. 7.

[4] Rennie, at para. 26; and Duong, at para.7.

[5] Rennie, at para. 26 (citation omitted); and Duong, at para. 7 (citation omitted).

[6] Kaphalakos v. Dayal, 2016 ONSC 3559, at para. 26.