The court in Tseng v Tseng 2021 BCSC 27 ordered partition and sale of two condos in a contentious dispute.
The petitioner was a one half interest owner in both condos, and the estate of the deceased on an intestacy was the owner of the other halves.
The application was opposed by relatives, one being the 78-year-old widow of the deceased, who occupied one condo and the other was occupied by two of her three children, both of whom had mental health conditions and received disability income.
The petitioner wanted to sell the property in order to realize her assets and start a new life.
The court ordered sale of the property and found that the respondents had sufficient assets and would not face significant hardship if the units were sold, and thus there was no good reason not to order a sale of both units.
THE LAW
Unless there is good reason not to do so, the sale of property under s. 6 of the PPA must be ordered if a petitioner has at least a 50% ownership interest in the property.
The court retains a broad and unfettered residual discretion under s. 6 of the PPA to refuse a sale of the property when required by the ends of justice: Sahlin v. The Nature Trust of British Columbia, Inc., 2011 BCCA 157at para. 24.
While the respondents do not technically bear the burden of proof, for all practical purposes, they should adduce evidence to establish a good reason why the Property should not be sold: Bradwell v. Scott, 2000 BCCA 576at para. 35.
Hardship As a Defence
Personal hardship may be a sufficiently “good reason” not to order the sale of jointly owned property, but it must be significant and not merely an inconvenience: McRae v. Seymour Village Management Inc., 2014 BCSC 714at para. 42, quoting Bourgeault v. Walton, [1998] B.C.J. No. 1957at para. 21 (S.C.); ter Borg v. Morris, 2012 BCSC 554at para. 23.
In McRae, several owners objected to a sale of their property on the basis they would be unable to find equivalent places to live and would suffer financial hardship.
The court held that personal or financial inconvenience is not a sufficient reason to prevent owners legitimately realising on their interests.
The petitioner accepts that the Court maintains a broad discretion when assessing hardship, provided it is exercised judiciously: Sahlin, at para. 24.
Accounting
Partition actions often have accompanying claims for occupational rent, repairs, mortgage interest, taxes, improvements, and the like, which may necessitate an accounting.
Accounting matters do not constitute a good reason to refuse a sale and could be addressed either at, or following a sale when the parties can present evidence on these issues if they were unable to reach agreement. It is open to the parties to direct a reference to the registrar to address these accounting issues. Zimmerman v Vega 2011 BC SC 757 at paragraphs 37 – 39
