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Sale of real property

When two parties separate, there are often questions about what happens to their home. More often than not, the home is the parties’ largest asset, and the asset with the most emotional attachment. As such, one of the most frequently asked questions I usually receive is, “Who gets the house?”.

In short, if the parties cannot agree to a satisfactory buyout figure, the court will likely order the home to be listed and sold on the open market. A joint owner of property has the right to seek an order to list and sell property, whether that be through the Partition Act or the Family Law Act. The court will only refuse a joint owner’s request for sale if the court finds a request to be malicious, vexatious, or oppressive. The threshold for a vexatious or malicious request is extremely high. The courts are clear that there will always be hardship when one party is compelled to sell a home, but it is a step that may need to be made if a buyout figure cannot be negotiated.

I am increasingly seeing situations where one party has made a request to delay the sale of property in hopes of eventually purchasing their partner’s interest in the home. This desire to purchase their partner’s interest is not enough to prevent a court from ordering the sale of property. A joint owner is entitled to seek the highest price for their interest in a home, and that can only be achieved on the open market. If the home is listed for sale on the open market, either party may make offers to purchase the home, but there will be no preferential treatment, and that party will be treated like any other interested purchaser.

If you are the party wishing to sell the home, pause for a moment and consider your options. There are often good reasons for negotiating a buyout figure. You would save any real-estate commissions that would otherwise be payable, and would save the cost of bringing a motion to compel the property’s sale. Of course, this is contingent on your partner making a fair offer for the home. Alternatively, if you are the party wishing to keep the home, you should consider making a very fair offer upfront in hopes of resolving this issue before it ever hits the courts, or the open market. Otherwise, you risk your partner taking this matter before the courts due to an unequal division of family property where the odds will be stacked against you to prove the request is malicious, vexatious, or oppressive.

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