Forced Sale of the Family Home

May 26th, 2020

I have said this many times … “the law is complex, there is no simple answer to what, on the surface, appear to be simple questions.” Recently, I have received many inquiries about how to force the sale of a jointly held home. My inquiries have come from former spouses or partners in adult interdependent relationships. In some instances, only the separating parties were on title. In others, the home had three or more people holding an interest, often including the mother-in-law or some other family member.

Often, the recommendation for someone who wants to force the sale of the home, is to commence an application for termination of co-ownership under the Law of Property Act.   Section 15 states:

“(1) A co-owner may apply to the Court for an order terminating the co-ownership of the interest in land in which the co-owner is a co-owner.

(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

(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.

(3) A sale under subsection (2)(b) or (c) and the distribution of the proceeds of the sale shall be under the direction of the Court.

(4) In making an order under subsection (2)(c), the Court shall fix the value of the land sold and the terms of the sale.”

Section 15 seems to be worded simply enough. The steps to terminating co-ownership appear to be self-evident.  However, it is not that simple.

In making an order under section 15, the Court must take into consideration many factors.  Some of these factors include whether a co-owner:

  1. has excluded another co-owner from the property;
  2. has made payments on account of the principle of the mortgage;
  3. has done something to reduce (or increase) the value of the land;
  4. should be compensated for non-capital expenses in respect of the land (insurance, utilities taxes, etc.);
  5. has made repairs to the home;

and how that should be accounted for.

In addition, the Court will examine:

  1. whether the home increased or decreased in value;
  2. whether repairs are required for the home;
  3. the amount of equity remaining after disposition costs (realtor fees, legal fees, other fees); and
  4. the state of the real estate market.

Another, often overlooked, factor considered by the Courts is whether a stay of enforcement of an Order terminating co-ownership should be granted.   Justice A. Wolley stated in a recent Alberta case regarding an application for the listing and sale of a family home that:

 “With respect to the (family) home it must be noted that the ordinary rule in favour of terminating (co-ownership) does not apply to (family) property. In the context of (family property) litigation, “the Court should not order the sale of the former (family) home if there are significant other financial matters still to be resolved”

“Each case must be weighed on its own merits, considering all relevant factors.”

In the context of related co-owners (spouses or adult interdependent partners) the Court will examine whether:

  1. an exclusive possession order for the home is in place,
  2. there are unresolved debt issues between the parties;
  3. there are unresolved division of property issues between the parties;

and:

  1. the needs of other family members in the home, including children;
  2. the urgency of the matter;
  3. the responsibilities of each party for the payment of ongoing expenses (mortgage, property taxes, insurance and utilities)

If you have a desire to end a co-tenancy you should have the services of a lawyer to help you. Relationships between family members and former spouses or partners need measured thought to navigate the complex legal landscape. With the right help, it may be possible to negotiate agreement with the other co-tenant(s) and your financial institution. If timely resolution is not possible, the services of a lawyer are essential to understand your risk, obligations and entitlements.

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