partition action

Who Can Bring a Partition Action

In order to be able to bring any  court action the claimant must have standing. Pallot v Douglas 2017 BCCA 254 is a court of appeal case setting out who has the standing to bring a partition action under the Partition of Property act. It held that a claimant who has the use of a leasehold property pursuant to a trust does NOT have standing to bring an action for partition.

Standing under the Partition of Property Act

[16]         Section 4(1) of the PPA sets out the persons who have standing to bring a partition application, as follows:

4 (1) Any person who, if this Act had not been passed, might have maintained a proceeding for partition may maintain such a proceeding against any one or more of the interested parties without serving the other or others, and a defendant in the proceeding may not object for want of parties.

[17]         This provision codifies the test for standing set out in Morrow v. Eakin, [1953] 2 D.L.R. 593 at 594‑595, 8 W.W.R. (N.S.) 548 (B.C.S.C.), which applied this Court’s decision in Evans v. Evans, [1951] 2 D.L.R. 221, 1 W.W.R. (N.S.) 280 (B.C.C.A.). The test requires looking at the civil law of England as the same existed on November 19, 1858, which was made applicable in this province by the English Law Act, R.S.B.C. 1948, c. 111, subject to modification by provincial legislation.

[18]         A more recent and detailed statement by this Court is that in Jillings v. Blewett Estate, [1993] 101 D.L.R. (4th) 604, 79 B.C.L.R. (2d) 217 (C.A.), which summarizes the principles thus:

10        To continue with the origins of our present Act I quote from Halsbury’s, The Laws of England (1st edition 1912) Volume 21 at 834‑5 (footnote);

Prior to the passing of the Partition Act, 1868 (31 & 32 Vict. c. 40), partition was a matter of right, and the court had no discretion to refuse partition or to order sale in lieu thereof (Warner v. Baynes (1750), Amb. 589; Parker v. Gerard (1754), Amb. 236). This state of the law produced numerous inconveniences and absurdities. In Turner v. Morgan (1803), 8 Ves. 143, Lord Eldon, L.C., decreed partition of a single house, and Mr. Romilly in argument cited a case of a house at Cockermouth which was partitioned by actually building a wall up the middle. This state of the law led to the passing of the Partition Acts, 1868 (31 & 32 Vict. c. 40) and 1876 (39 & 40 Vict. c. 17), under which the court has wide powers to order a sale in lieu of partition where the nature of the property or the interest of the parties makes that more convenient.

[Emphasis added.]

11        Turning to the law in the Province of British Columbia, I take this summary from the reasons for judgment of Mr. Justice Bird in Evans v. Evans (1951), 1 W.W.R. (N.S.) 280 at 286‑7:

The civil law of England as the same existed on November 19, 1858, subject to modification by provincial legislation, was made applicable in this province by the English Law Act, RSBC, 1948, ch. 111.

Therefore the law relating to partition in British Columbia remained as it was in England prior to the enactment of 31 & 32 Vict., ch. 40, until 1880, when the provincial legislature introduced in this province legislation substantially in the terms of 31 & 32 Vict., ch. 40, the substantial change effected in the law by that legislation being to give the court jurisdiction to order sale in lieu of partition “in an action for partition where, if this Act had not been passed, a decree for partition might have been made: Partition Act, 1880, ch. 21, sec. 4. (emphasis added)

12        Section 4 of the statute of 1880 is now Section 7 of the Partition of Property Act, R.S.B.C. 1979, c. 311 and with amendments to the 1880 statute of no consequence for present purposes gives the court jurisdiction to order sale in place of partition.

7. In a proceeding for partition where, if this Act had not been passed, a judgment for partition might have been given, then if it appears to the court that by reason of the nature of the property to which the proceeding relates, or of the number of parties interested or presumptively interested in it, or of the absence or disability of some of those parties, or of any other circumstance, a sale of the property and a distribution of the proceeds would be more beneficial for the parties interested than a division of the property between or among them, the court may, if it thinks fit, on the request of any of the parties interested and notwithstanding the dissent or disability of any others of them, direct a sale of the property accordingly, and may give all necessary or proper consequential directions. (emphasis added)

13        The words I have emphasized – if this Act had not been passed – are significant because as Mr. Justice Bird pointed out “the law relating to partition in British Columbia remained as it was in England prior to the enactment of 31 & 32 Vict. ch. 40” in 1868. I repeat then what was said in Dogg v. Cattell (cited above):

But in Courts of Equity as well as in those of Common Law the existence of a joint tenancy or a tenancy in common is essential to the jurisdiction.

[Emphasis added in original.]

[19]         As noted in Jillings, the provisions of the PPA dealing with those against whose interests partition may be compelled do not inform the provisions dealing with entitlement to seek partition, i.e., standing:

14        The appellants placed reliance on particular words used in Section 2 to give them standing to obtain an order for partition and in lieu thereof an order for sale. I have underlined the particular words in the section:

 2. All joint tenants, tenants in common, copartners, mortgagees or other creditors having liens on, and all parties interested in, to, or out of, any land may be compelled to make or suffer partition or sale of the land, or any part of it as provided in this Act, and the partition may be had whether the estate is legal or equitable or equitable only; except that in respect of special timber licences no partition shall be made of a single licence, and any odd licences not possible to assign by partition to any of the parties interested shall be ordered to be sold.

15        The appellants submit that they come within the intent of “all parties interested in …. any land”. However section 2 does not describe the parties entitled to partition. As the heading indicates – Parties may be compelled to make partition or sale – the section describes those against whom an order may be made including creditors.

[Emphasis added.]

[20]         A recent summary as to who was entitled to bring a petition for partition under English law in 1858 is found in the British Columbia Law Institute consultation paper Consultation Paper on the Partition of Property Act (June 2011) at 5‑6:

In order to determine who is eligible to seek partition, therefore, the English law pre-dating the English Partition Act, 1868 [31 & 32 Vict., c. 40] needs to be examined. Specifically, it is the law of England as it existed on 19 November, 1858 that needs to be examined, as the Law and Equity Act [R.S.B.C. 1996, c. 253, s. 2] makes English law as it existed on that date applicable in British Columbia except to the extent it has been altered by laws of the province or is inapplicable to local circumstances. As of that date, the classes of persons eligible to seek partition were coparcenary tenants and those co-owners to whom the statutes of 1539 and 1540 had extended the remedy. As coparcenary tenancy no longer exists, the persons eligible to seek partition or sale in lieu of partition in British Columbia are those described in the 1539 and 1540 statutes, namely:

(a) joint tenants of the fee simple or a profit à prendre;

(b) tenants in common of the fee simple or a profit à prendre;

(c) joint tenants or tenants in common of a life estate;

(d) co-owners of a leasehold estate (co‑lessees).

There is another requirement: anyone seeking partition or sale must have an immediate right to possession of the land. Thus owners of a future interest, such as joint tenants of a remainder following a life estate, cannot claim these remedies.

[Emphasis added, footnotes omitted.]

[21]         The persons entitled to seek partition (s. 4(1) PPA) are a distinct class from those against whom partition may be compelled (s. 2 PPA). Up to this point, the persons with standing under the PPA have been restricted to joint tenants, tenants in common, or co‑owners of a legal estate.

B. Possession

[22]         It is not disputed that to have standing under the PPA a petitioner must have a possessory interest in land. A possessory interest is:

The present right to control property, including the right to exclude others, by a person who is not necessarily the owner … A present or future right to the exclusive use and possession of property.

Black’s Law Dictionary, 8th ed, sub verbo “possessory interest”.

The possessory interest requirement has been characterized as requiring the petition to have an immediate right to possession of the land: Morrow at 595, Consultation Paper at 6.

[23]         Although the statutory language in the Ontario Partition Act, R.S.O. 1990, c. P.4, differs, it has been held in Ontario that only persons entitled to immediate possession of an estate in property may make application for partition and sale: Di Michele v. Di Michele, 2014 ONCA 261 at paras. 75‑80; Morrison v. Morrison (1917), 39 O.L.R. 163 at 168, 171‑72, 34 D.L.R. 677 (Ont. C.A.); and Ferrier v. Civiero (2001), 147 O.A.C. 196 at paras. 6 and 8, 42 R.P.R. (3d) 12 (C.A.).

[24]         The judge below determined that Mr. Pallot’s beneficial interest is an interest in land for the purposes of the PPA. Thus the crux of the issue as to whether Mr. Pallot has standing to seek partition is the question of whether that interest includes an immediate right to possession.

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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