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.
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 It is clear that physical partition is impossible, so a sale is the only method for the division of the parties’ interests.
The relevant provisions of the Act are set out below:
2.(1) All joint tenants, tenants in common, coparceners, mortgagees or other creditors who have liens on, and all parties interested in any land may be compelled to partition or sell the land, or a part of it as provided in this Act.
(2) Subsection (1) applies whether the estate is legal or equitable or equitable only.
In a proceeding for partition where, if this Act had not been passed, an order for partition might have been made, and if the party or parties interested, individually or collectively, to the extent of 1/2 or upwards in the property involved request the court to direct a sale of the property and a distribution of the proceeds instead of a division of the property, the court must, unless it sees good reason to the contrary, order a sale of the property and may give directions.
In a proceeding for partition where, if this Act had not been passed, an order for partition might have been made, and if it appears to the court that because of the nature of the property involved, 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 interested parties than a division of the property, the court may
on the request of any of the interested parties and despite the dissent or disability of any other interested parry, order a sale of the property, and give directions.
8.(1) In a proceeding for partition where, if this Act had not been passed, an order for partition might have been made, then if any party interested in the property involved requests the court to order a sale of the property and a distribution of the proceeds instead of a division of the property, the court may order a sale of the property and give directions.
The court may not make an order under subsection (1) if the other parties interested in the property, or some of them, undertake to purchase the share of a party requesting a sale.
If an undertaking is given, the court may order a valuation of the share of the party requesting a sale in the manner the court thinks fit, and may give directions.
Section 2 provides the authority to order partition or sale on application of a tenant in common. Section 6 provides that where parties entitled collectively to one-half or more of the property request a sale, the court must order a sale unless it sees good reason to the contrary. Section 7 provides for a situation not coming within s. 6 where a party or parties requests a sale.
It is only s. 8 of the Act that provides for the valuation of property and the purchase by one or more of the parties of the interest of the party requesting a sale upon the giving of an undertaking. In my view, Tina is not entitled to rely on s. 8 for two reasons. Firstly, she is the party who by commencing the action requested the sale and it is the other parties who would have the ability to purchase her interest (see Hunfeld v. Molendijk. 2012 BCSC 797 (B.C. S.C.) at paras. 55 — 56). Secondly, and in any event, Tina has not provided the necessary undertaking under s. 8. She merely asks for an opportunity to buy the Property if she can obtain financing.