Whether property be owned as tenants in common, or as joint tenants, if the parties cannot agree on the sale of the property, the BC Court has the power to do so under the provisions of the Partition of Property Act RSBC. This blog sets out the type of partition and sale court order that should be sought.
The jurisdiction to order the partition or sale of land owned by co-tenants is found in the Partition of Property Act, R.S.B.C. 1996, c. 347
In an Ontario case Mammome Estate v Mammome 2017 ONSC 3403 there was initially a court order made for partition and Sale that was subsequently amended by a second court order that provided for greater certainty due to the failure of one party to co operate with the named realtor by such things as refusing to allow a for sale sign and refusing to sign a listing agreement.
First Order
THIS APPLICATION made by the Applicants for an order directing the properties municipally known as 7912 Kipling Avenue and 7918 Kipling Avenue, Vaughan, Ontario (the “Properties”) be sold, for an order directing an accounting of the income and expenses of the Properties, and for an order directing that the Respondent Density Garden Enterprises Inc. be wound up, and this CROSS-APPLICATION made by the Respondents for an order for specific performance directing that the Applicants’ one-half direct and indirect interests in the Properties be sold to the Respondent, Emilio Mammone, . . . .
1. THIS COURT ORDERS THAT the following lands and premises be listed for sale, marketed and sold:
2. THIS COURT ORDERS THAT the sale of the Properties shall be conducted in accordance with the following:
(a) The Parties shall retain a real estate agent selected by the Applicants, to assist with the listing for sale, marketing and sale of the Properties, and who shall act on the instructions of the Applicants;
(b) The Parties shall retain Frank Sgro, real estate solicitor, to assist with the completion of the legal work necessary to facilitate and effect the sale of the Properties; and
(c) The Parties will accept offers to purchase either of the Properties if such offers are recommended for acceptance by the real estate agent identified in subparagraph (a) above, and will otherwise take all reasonable steps to co-operate with the real estate agent to effect the sale of the Properties.
3. THIS COURT ORDERS THAT the net proceeds of the sales of the Properties shall be paid as follows:
(a) in respect of 7912 Kipling,
(i) 50% thereof to the Estate of Frank Mammone, and
(ii) 50% thereof to the Respondent Emilio Mammone,
4. THIS COURT ORDERS that the Cross-Application of the Respondents is dismissed.
5. THIS COURT ORDERS that the Respondents shall provide an accounting to the Applicants with respect to all rental and other revenues generated by the Properties, and all taxes and expenses paid . . . . The accounting agreed to by the Parties shall include an assessment of the services performed by Emilio Mammone for the purpose of calculating its value. . . .
7. . . . . subject to the accounting hereafter referred to;
(b) in respect of 7918 Kipling,
(i) 50% thereof to the Estate of Frank Mammone, as a shareholder of 50% of the shares of the Respondent, Density Garden Enterprises Inc. and,
(ii) 50% thereof to the Respondent Emilio Mammone, as a shareholder of 50% of the shares of the Respondent, Density Garden Enterprises Inc.
subject to the accounting hereafter referred to.
The Applicants brought their application to sell the properties and to remove Emilio as a participant in the sale process.
C. Discussion and Analysis
22 It undoubtedly saves considerable legal expense if the parties to a Partition Act proceeding will co-operate to sell the property, but in the immediate case, the parties will not co-operate and more expensive direct court intervention is required. There is little doubt that Justice Dow’s Order is not working and that the Order needs to be revised to bring closure to this family dispute in a way that is fair to both sides.
23 There is no dispute that the court has the jurisdiction to vary Justice Dow’s Order and both parties sought the court to exercise the jurisdiction in their favour and in a way that would disfavour the other.
24 Court supervision in a Partition Act application is typically done by referring the sale to a Master, but, in my opinion, that is not necessary in the immediate case and all that is required is to delete paragraph 2 from Justice Dow’s Order and to substitute the following:
Amended Order
2. THIS COURT ORDERS THAT the sale of the Properties shall be conducted in accordance with the following:
(a) The Applicants shall retain and sign a standard listing agreement with a term of 45 days with Alfredo DiGenova, to assist with the listing for sale, marketing and sale of the Properties, and who shall act on the instructions of the Applicants;
(b) The Parties shall retain Frank Sgro, real estate solicitor, to assist with the completion of the legal work necessary to facilitate and effect the sale of the Properties;
(c) The acceptance of any offer is subject to court approval and if the Applicants receive an offer within the listing period, they may bring a motion for court approval of the sale;
(d) The Respondent Emilio Mammone may submit offers but shall not have a right of first refusal;
(e) If no offer is received within the period of the listing, the Applicants may apply for an order extending the time for the listing of the properties or for any other order that is just;
(f) If the court approves the acceptance of the offer, and the Respondents refuse to sign the transfer to the purchaser, the court shall make a Vesting Order pursuant to s. 100 of the Courts of Justice Act;
(g) The real estate commission, conveyancing lawyer’s fees shall be paid out of the proceeds of sale; and
(h) If Emilio has not paid the costs awards of the Partition Act proceedings made against him, those costs shall be deducted from his share of the proceeds of sale.
