In the recently released decision of Ross v. Luypaert, 2025 ONCA 236, the Ontario Court of Appeal reaffirmed that a co-owner of real estate can compel the sale of jointly owned property under the Partition Act. The only exception is where the opposing party can prove that such an application amounts to malicious, vexatious, or oppressive conduct—a high threshold that was not met in this case.
The Facts
The applicants were litigation guardians for their elderly parents, who were mentally incapable. They brought an application to:
- Sell a duplex in Guelph jointly owned by their parents and their brother; and
- Have the brother vacate a second property solely owned by their mother.
The purpose was to use the proceeds to help fund their parents' ongoing care. The brother opposed the application, alleging that his siblings had provided inaccurate and misleading information. However, the court found that these claims did not outweigh the applicants' statutory right to sell the jointly owned property.
Additionally, the court found there was no tenancy agreement entitling the brother to remain in the second property and ordered that he vacate it.
Court of Appeal Decision
The Ontario Court of Appeal dismissed the appeal and upheld the original decision. The ruling reinforces the principle that, under the Partition Act, co-owners have a presumptive right to sever their interests and compel a sale.
Key Takeaways
- Statutory right to partition: Joint owners have a clear right under the Partition Act to apply for the sale of a property.
- High bar to resist: A resisting owner must demonstrate the application is malicious, vexatious, or oppressive to prevent a sale.
- No tenancy, no rights: Occupation of a property without a tenancy agreement may not provide legal grounds to remain.
- Litigation guardianship: The case touches on procedural issues around representation for mentally incapable parties.
- Practical implications: This decision provides clarity for families navigating joint ownership, elder care, and disputes over property rights.
Final Thoughts
Ross v. Luypaert is a reminder that joint ownership does not lock co-owners together indefinitely. The Partition Act provides a mechanism to untangle property interests, even in difficult family circumstances. The decision also highlights the importance of documentation—particularly around occupancy and tenancy—in intra-family property arrangements.
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