Yes, they can be compelled. Section 2 of the Partition Act provides that joint tenants, tenants in common and “all parties interested in… any land in Ontario… may be compelled to make or suffer partition or sale”, and section 3(1) lets any person interested in land bring an action or an application in the Superior Court, seeking sale where the court considers it “more advantageous to the parties interested”. Where the co-ownership arose by will or intestacy, section 3(2) bars a proceeding until one year after the death. Two things change the analysis completely: whether you are joint tenants or tenants in common — tenancy in common is the default under section 13(1) of the Conveyancing and Law of Property Act — and whether the property is a matrimonial home, where section 21 of the Family Law Act bars disposal without the other spouse’s consent, but only for married spouses.
You own a property with someone — a sibling after a parent died, an ex-partner, a friend who went in on an investment — and you want to sell. They will not. You have been told there is nothing you can do. That is wrong, and the statute that says so is seven sections long.
The Partition Act: your co-owner can be compelled
Section 2 of the Partition Act, R.S.O. 1990, c. P.4:
“All joint tenants, tenants in common, and coparceners… mortgagees or other creditors having liens on, and all parties interested in, to or out of, any land in Ontario, may be compelled to make or suffer partition or sale of the land, or any part thereof, whether the estate is legal and equitable or equitable only.”
And section 3(1):
“Any person interested in land in Ontario, or the guardian of a minor entitled to the immediate possession of an estate therein, may bring an action or make an application for the partition of such land or for the sale thereof under the directions of the court if such sale is considered by the court to be more advantageous to the parties interested.”
Refusing to co-operate is not, on the face of the statute, a defence to being compelled. That is the whole point of the Act, and it has been on the books in this form since 1990.
Two details in that wording are worth noticing. “Any person interested in land” is broader than a registered owner — section 2 reaches interests that are “legal and equitable or equitable only”, so an unregistered beneficial interest counts. And it reaches lienholders and mortgagees too.
Partition or sale?
The Act does not state a preference in the abstract. Partition — physically dividing the land — is the named relief, and sale is the alternative available where the court considers it “more advantageous to the parties interested”. Section 5(1) refers to a proceeding “in which a sale of land in lieu of partition is ordered”, and the prescribed judgment form contemplates partition, sale, or partition of part and sale of the remainder.
You will read confidently that sale is the practical default for an urban house or condominium, because you cannot cut one in half. That is a reasonable expectation and it may well be right, but it rests on case law rather than on the statute, and I do not publish case law I have not read. What the statute says is that the choice is the court’s.
The one-year wait on inherited property
Section 3(2): where the land is held in joint tenancy, tenancy in common or coparcenary “by reason of a devise or an intestacy, no proceeding shall be taken until one year after the decease of the testator or person dying intestate in whom the land was vested.”
So if you inherited the property with a sibling, the clock does not start until the first anniversary of the death. That year is worth using for the conversation rather than losing to it.
Missing co-owner
Section 4 covers a co-owner who “has not been heard of for three years or upwards and it is uncertain whether such person is living or dead”. The court may appoint a guardian to represent them, and the guardian’s acts bind the absent person. It is a real answer to a real and common problem.
How the property is held changes everything
Most Ontario co-owners do not know which they are, and the presumption is probably not the one you assume.
Section 13(1) of the Conveyancing and Law of Property Act: where land is granted or devised to two or more persons, “it shall be considered that such persons took or take as tenants in common and not as joint tenants, unless an intention sufficiently appears on the face of the… assurance or will, that they are to take as joint tenants.” Section 13(2) applies that even where one is the spouse of the other.
| Tenancy in common | Joint tenancy | |
|---|---|---|
| How created in Ontario | The default under s. 13(1) | Must be expressly created on the face of the instrument |
| On death | The share passes under the will or on intestacy | Right of survivorship — the share passes to the surviving joint tenant |
| Shares | Can be unequal | Equal by nature |
| Partition available | Yes — s. 2 names both | Yes — s. 2 names both |
Severing a joint tenancy
The Conveyancing and Law of Property Act has no section headed “severance” — I read the whole Act and the word does not appear in that sense. What it supplies is the mechanism: section 41 permits a person to convey property to themselves “in like manner as the person could have conveyed the property to… another person.”
ServiceOntario’s own land registration directive confirms how that is registered. Bulletin 76017: “a joint tenant can sever the joint tenancy by executing and registering a deed or transfer to himself… the land registrar should show the transferee… as a tenant in common with the other registered owner or owners.”
And what does not sever. Bulletin 96005: “In the land titles system, the registration of a charge by fewer than all the joint tenants does not automatically sever the joint tenancy. The registration of the charge is not, in itself, unequivocal evidence of an intention to sever… However, the joint tenancy will be severed by the chargee exercising the power of sale in the charge or by foreclosure.”
Why this matters urgently in a dispute: if you are joint tenants and you die first, your share goes to the person you are fighting with, not to your estate. Severance is a same-day step and it is the first thing to raise with a lawyer.
The matrimonial home is a different world entirely
Section 21(1) of the Family Law Act:
“No spouse shall dispose of or encumber an interest in a matrimonial home unless, (a) the other spouse joins in the instrument or consents to the transaction; (b) the other spouse has released all rights under this Part by a separation agreement; (c) a court order has authorized the transaction or has released the property from the application of this Part; or (d) the property is not designated by both spouses as a matrimonial home and a designation of another property… is registered and not cancelled.”
Section 21(2) allows a transaction in contravention to be set aside, unless the person holding the interest acquired it for value, in good faith and without notice that the property was a matrimonial home.
Section 19(1) is equally blunt: “Both spouses have an equal right to possession of a matrimonial home” — and section 19(2) makes that right personal against the owning spouse where only one of them holds an interest, ending when they cease to be spouses unless an agreement or order says otherwise.
“Spouse” in Part II means married. Section 1(1) of the Family Law Act defines spouse as either of two persons who are married to each other, or who entered a voidable or void marriage in good faith. Part III extends the definition to unmarried cohabitants for support purposes. Part II, which contains the matrimonial home rules, does not. Common-law partners in Ontario do not get the section 21 consent right or the section 19 possession right. That is a large and widely misunderstood distinction and it changes the whole analysis.
The procedure, and what it costs to start
There is a dedicated rule. Rule 66.01(1) of the Rules of Civil Procedure: “A person who is entitled to compel partition of land may commence an action or an application under the Partition Act.” Either route is open, which mirrors section 3(1) of the Act.
Rule 66.03 is worth knowing before you start: “All money realized in a partition proceeding from sale of land shall forthwith be paid into court, unless the parties agree otherwise, and no money shall be distributed or paid out except by order of a judge” or a referee. The sale proceeds do not land in your account on closing.
Rule 66.01(2) requires a proceeding by or on behalf of a minor to be on notice to the Children’s Lawyer. Appeals go to the Divisional Court under section 7 of the Act.
| Court fee | Amount |
|---|---|
| Issue a notice of application or statement of claim | $243 |
| File a notice of appearance | $172 |
| File a notice of intent to defend | $194 |
| File a notice of motion served on another party | $339 |
| Sign an order directing a reference | $315 |
| File a trial record, first time | $859 |
| Perfect an appeal or judicial review application | $645 |
Those are set by O. Reg. 293/92 and are frozen until an indexed adjustment beginning 1 January 2027.
These are court fees only. They are not what a partition proceeding costs. Legal fees are the overwhelming majority of the bill and no Ontario source publishes a figure for them, so I am not going to invent one. Ask a litigator for a written estimate before you file anything, and ask specifically what it costs if the other side defends.
Mandatory mediation, if you are in the right county
Rule 24.1 applies mandatory mediation to actions commenced in the City of Ottawa, the City of Toronto and the County of Essex, plus actions transferred into those counties on or after 1 January 2014. Its stated purpose is “to reduce cost and delay in litigation and facilitate the early and fair resolution of disputes.”
Note the wording: Rule 24.1 applies to actions. If you proceed by application under Rule 66.01(1) rather than by action, consider with counsel what that does to the mediation requirement.
Land transfer tax on a buyout: yes, and on the mortgage too
A buyout is a conveyance to a transferee, and the Land Transfer Tax Act defines transferee to include “any person whose interest in land is increased, created or given effect to as the result of a conveyance.” So tax applies.
The Ministry of Finance publishes three situations where it does not, and one trap that catches almost everyone.
| Situation | Land transfer tax |
|---|---|
| Physical partition of one contiguous parcel where each co-tenant receives land equal in value to their original interest | No tax. Consideration is set out as nil |
| Simple change in legal tenure between the same parties, tenancy in common to joint tenancy or the reverse | No tax — not a conveyance within the meaning of the Act |
| Transfer out of an estate to a beneficiary in satisfaction of their beneficial interest | No tax |
| Buying out a co-owner | Tax payable on the value of the consideration |
| Assuming the mortgage as part of a buyout | Tax payable on the outstanding balance at registration, “regardless of the relationship between the parties” |
That last row is the one that surprises people. If you take your sibling off title and assume the mortgage, the assumed balance is consideration and land transfer tax is calculated on it. The Ministry says so in terms. Certain transfers between spouses are treated differently under Regulation 696 — ask your lawyer whether you are within it.
And gifts are not exempt as such: “The Act does not exempt gifts of land from land transfer tax. However, if on a conveyance there is no consideration passing in any form whatsoever… then no tax is payable” — the exemption is arithmetic, not statutory. Toronto’s municipal land transfer tax is a separate City charge on top.
How common is this? Ontario does not count it
There is no published Ontario data on partition proceedings. I checked four routes and all four came back empty.
The Ontario Data Catalogue entry for the Ministry of the Attorney General’s court case-tracking data states plainly: “Data restricted — This data is not and will not be made available.” The Court Services Division annual report publishes service-level measures only, with no case-type breakdown. The Superior Court’s own published data has categories for civil, criminal, family and small claims and nothing more granular.
And Statistics Canada’s Civil Court Survey, table 35-10-0114-01, has a complete type-of-action dimension of: total, bankruptcy, collection, other contract, motor vehicle, other tort, probate, other civil action type, and unknown. A partition proceeding lands in “other civil action type” — an undifferentiated residual. Nobody in Ontario counts these.
What I would do, in order
- Pull the parcel register and find out how you actually hold title. Tenants in common is the presumption under section 13(1), but a joint tenancy has to be on the face of the instrument. This is a twenty-minute question with a very large answer.
- If you are joint tenants and in dispute, talk to a lawyer about severing this week. Bulletin 76017 confirms you can do it unilaterally by transferring to yourself. Until you do, if you die first your share goes to the person you are fighting with.
- Check whether the property is a matrimonial home and whether you are married. Section 21 changes everything, and it applies only to married spouses. Common-law partners do not have it.
- If it was inherited, check the date of death. Section 3(2) bars a proceeding until one year after.
- Get a written valuation before you negotiate a buyout. If the number is right, a buyout is faster and cheaper than any proceeding — and it is what most of these end in.
- Price the land transfer tax into the buyout, including the assumed mortgage. It is the line item that derails buyout negotiations at the last minute.
- Ask a litigator for a written estimate before you file. The $243 to issue is the cheapest thing that will happen. Ask specifically what a defended proceeding costs.
- If you are in Toronto, Ottawa or Essex, understand the mediation rule before you choose between an action and an application. Rule 24.1 applies to actions.
What is not on this page
No case law, so nothing on when a court will refuse partition, what counts as malicious or vexatious conduct, or how accounting between co-owners for mortgage payments and improvements is handled. Those are real and important questions and every one of them is answered by decisions rather than by statute. No legal fee estimates, because none are published. And no claim about whether sale is the practical default, because the Act does not say so.
Stuck in a co-owned property in Etobicoke or the GTA?
Send me the address. I will give you a written, defensible view of what the property is worth today and what it would realistically sell for, which is the number every one of these conversations turns on — whether it ends in a buyout, an agreed sale or a proceeding. I am not your lawyer, and on the legal steps I will tell you to get one. No cost and no obligation.
connect@jatindua.com · 437-987-1925 · Book a free consultation
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Frequently asked questions
Can I force my co-owner to sell a property in Ontario?
The Partition Act allows you to try. Section 2 provides that joint tenants, tenants in common, coparceners, mortgagees and other lienholders and all parties interested in land in Ontario may be compelled to make or suffer partition or sale, whether the estate is legal and equitable or equitable only. Section 3(1) allows any person interested in land to bring an action or make an application for partition, or for sale under the directions of the court if the court considers sale more advantageous to the parties interested. Refusing to co-operate is not, on the face of the statute, a defence to being compelled.
Will the court order a sale or a physical division?
The Act does not state a preference in the abstract. Partition is the named relief and sale is the alternative available where the court considers it more advantageous to the parties interested. Section 5(1) refers to a proceeding in which a sale of land in lieu of partition is ordered, and the prescribed judgment form contemplates partition, sale, or partition of part and sale of the remainder. Whether sale is the practical outcome for an urban house or condominium is a question answered by case law rather than by the statute.
We inherited the house. Can I start right away?
No. Section 3(2) of the Partition Act provides that where land is held in joint tenancy, tenancy in common or coparcenary by reason of a devise or an intestacy, no proceeding shall be taken until one year after the death of the testator or the person who died intestate in whom the land was vested.
What is the difference between joint tenancy and tenancy in common?
The practical difference is what happens on death. A joint tenancy carries the right of survivorship, so a deceased joint tenant’s share passes to the survivor. A tenancy in common has no survivorship, so the share passes under the will or on intestacy, and shares can be unequal. In Ontario, section 13(1) of the Conveyancing and Law of Property Act presumes tenancy in common unless an intention to take as joint tenants sufficiently appears on the face of the instrument, and section 13(2) applies that presumption even where one of the persons is the spouse of another.
Can I sever a joint tenancy on my own?
ServiceOntario’s land registration directive says yes. Bulletin 76017 states that a joint tenant can sever the joint tenancy by executing and registering a deed or transfer to himself, and directs the land registrar to show the transferee as a tenant in common with the other registered owners. The Conveyancing and Law of Property Act supplies the mechanism at sections 40 to 42, although the Act contains no section headed severance. Bulletin 96005 separately confirms that registering a charge by fewer than all the joint tenants does not automatically sever the tenancy.
Does the Partition Act apply to a matrimonial home?
The matrimonial home rules in Part II of the Family Law Act sit over the top of it. Section 21(1) prohibits a spouse from disposing of or encumbering an interest in a matrimonial home unless the other spouse joins in the instrument or consents, has released all rights by separation agreement, a court order authorises the transaction or releases the property from Part II, or another property is registered as a designated matrimonial home. Section 19(1) gives both spouses an equal right to possession. Whether and how a partition proceeding interacts with those provisions on particular facts is a question for a family law lawyer.
Do common-law partners have matrimonial home rights in Ontario?
No. Section 1(1) of the Family Law Act defines spouse as either of two persons who are married to each other, or who together entered into a marriage that is voidable or void in good faith. Part III of the Act extends the definition to unmarried cohabitants for support purposes, but Part II, which contains the matrimonial home provisions including the section 21 consent requirement and the section 19 right of possession, does not. This is a widely misunderstood distinction and it changes the analysis entirely.
What does it cost to start a partition proceeding?
The court fee to issue a notice of application or a statement of claim is $243 under O. Reg. 293/92, with $339 to file a notice of motion served on another party, $315 to sign an order directing a reference, and $859 to file a trial record for the first time. Those fees are frozen until an indexed adjustment beginning 1 January 2027. They are court fees only. Legal fees are the substantial cost of a partition proceeding and no Ontario source publishes a figure for them, so get a written estimate from a litigator that specifically addresses what happens if the other side defends.
Is it an application or an action?
Either. Rule 66.01(1) of the Rules of Civil Procedure provides that a person entitled to compel partition of land may commence an action or an application under the Partition Act, mirroring the wording of section 3(1) of the Act. The choice has consequences, including for mandatory mediation, which under Rule 24.1.04(1) applies to actions commenced in the City of Ottawa, the City of Toronto and the County of Essex.
If the property sells, do I get my share at closing?
Not directly. Rule 66.03 provides that all money realised in a partition proceeding from the sale of land shall forthwith be paid into court, unless the parties agree otherwise, and that no money shall be distributed or paid out except by order of a judge or, on a reference, by order of the referee.
Is land transfer tax payable when I buy out my co-owner?
Yes. The Land Transfer Tax Act defines a transferee to include any person whose interest in land is increased, created or given effect to as the result of a conveyance, and imposes tax on the value of the consideration. The Ministry of Finance publishes three related situations that are not taxable: a physical partitioning of one contiguous parcel where each co-tenant receives land equal in value to their original interest, a simple change in the form of legal tenure between the same parties, and a transfer from a personal representative to a beneficiary in satisfaction of a beneficial interest.
Does assuming the mortgage count as consideration?
Yes, and this is the trap that derails buyouts. The Ministry of Finance states that consideration includes the assumption of any liabilities, so that if there is an outstanding encumbrance on the land, tax will be payable on the amount outstanding at the time of registration, regardless of the relationship between the parties, except for certain transfers between spouses under Regulation 696. The Ministry also states that the Act does not exempt gifts of land from land transfer tax, although where no consideration passes in any form the computed tax is nil.
What if my co-owner has disappeared?
Section 4 of the Partition Act deals with it. Where a person interested in the land has not been heard of for three years or more and it is uncertain whether they are living or dead, the court may on the application of anyone interested appoint a guardian to take charge of that person’s interest. The guardian represents the absent person in the proceeding and the guardian’s acts are binding on them and on anyone claiming through them.
Related reading
- Your buyer did not close: the deposit is not automatically yours
- No equity in your house? What happens when the sale will not cover the mortgage
- Title insurance in Ontario: what it covers, what it does not
- Title fraud in Ontario: who bears the loss
Sources
Every figure on this page traces to one of these, and each was read on 1 September 2026. Primary sources only — statute, regulation, and the government or agency that administers the rule. Where I could not verify something from a primary source, the page says so instead of guessing.
- Partition Act, R.S.O. 1990, c. P.4. Government of Ontario e-Laws, consolidated text read 1 September 2026 through the e-Laws JSON API; consolidation period from 15 December 2009. Section 1 defines court as the Superior Court of Justice. Section 2 makes joint tenants, tenants in common, coparceners, mortgagees and other lienholders and all parties interested in land compellable to make or suffer partition or sale. Section 3(1) permits any person interested in land to bring an action or make an application for partition, or for sale where the court considers sale more advantageous. Section 3(2) bars a proceeding for one year after a death where the co-ownership arises by devise or intestacy. Section 7 routes an appeal to the Divisional Court. Accessed 1 September 2026.
- Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 66 and Rule 24.1. Government of Ontario e-Laws, consolidation period from 12 August 2026, last amended by O. Reg. 275/26. Rule 66.01(1) permits a person entitled to compel partition to commence an action or an application under the Partition Act. Rule 66.03 requires all money realised from a sale in a partition proceeding to be paid into court unless the parties agree otherwise. Rule 24.1.04(1) applies mandatory mediation to actions commenced in the City of Ottawa, the City of Toronto and the County of Essex. Accessed 1 September 2026.
- Conveyancing and Law of Property Act, R.S.O. 1990, c. C.34. Government of Ontario e-Laws, consolidation period from 1 July 2024. Section 13(1) provides that land granted or devised to two or more persons is taken as tenants in common and not as joint tenants unless an intention to take as joint tenants sufficiently appears on the face of the instrument, and section 13(2) applies that presumption even where the persons are spouses. Sections 40 to 42 supply the conveyancing mechanism that makes a unilateral severance possible. Accessed 1 September 2026.
- Land Registration Bulletin 76017, Severance of Joint Tenancy — ServiceOntario. ServiceOntario, issue date 12 July 1976, page updated 2 March 2022. Directs that a joint tenant may sever a joint tenancy by executing and registering a transfer to himself, and that the land registrar should then show the transferee as a tenant in common with the other registered owners. Accessed 1 September 2026.
- Land Registration Bulletin 96005, Joint Tenancy — ServiceOntario. ServiceOntario, issue date 20 December 1996, page updated 2 March 2022. States that in the land titles system the registration of a charge by fewer than all the joint tenants does not automatically sever the joint tenancy, but that the joint tenancy will be severed by the chargee exercising the power of sale or by foreclosure. Accessed 1 September 2026.
- Family Law Act, R.S.O. 1990, c. F.3, Part II. Government of Ontario e-Laws, consolidation period from 1 May 2026. Section 1(1) defines spouse for Part II as a married person only. Section 18(1) defines the matrimonial home as property ordinarily occupied by the person and their spouse as their family residence. Section 19(1) gives both spouses an equal right to possession. Section 21(1) prohibits a spouse from disposing of or encumbering an interest in a matrimonial home without the other spouse joining or consenting, a release by separation agreement, a court order, or a registered designation of another property. Accessed 1 September 2026.
- O. Reg. 293/92, Superior Court of Justice and Court of Appeal Fees, and Civil court fees. Government of Ontario, page updated 9 April 2026, and the regulation at e-Laws consolidated from 19 December 2025 as amended by O. Reg. 395/25. The fee to issue a statement of claim, notice of action or notice of application is $243. Filing a notice of motion served on another party is $339, signing an order directing a reference is $315, and filing a trial record for the first time is $859. Section 6(1) freezes the fees until an indexed adjustment beginning 1 January 2027. Accessed 1 September 2026.
- Land Transfer Tax: transactions for nominal consideration — Ministry of Finance. Government of Ontario, Bulletin LTT 10-2000, page updated 8 July 2025. States that no tax is payable on a partitioning of contiguous land where each co-tenant receives land equal in value to their original interest, that a simple change in the form of legal tenure between the same parties is not a conveyance within the meaning of the Act, and that a transfer from a personal representative to a beneficiary in satisfaction of a beneficial interest is not taxable. It also states that consideration includes the assumption of any liabilities, so tax is payable on an outstanding encumbrance at registration regardless of the relationship between the parties. Accessed 1 September 2026.
- Land Transfer Tax Act, R.S.O. 1990, c. L.6, and Land Transfer Tax guidance. Government of Ontario, page published 6 April 2022 and updated 2 January 2026, and the consolidated statute at e-Laws. Section 2(1) imposes the tax on a person who tenders a conveyance for registration. The guidance states that the tax is payable when the transfer is registered and that where a transfer is not registered within thirty days of closing a Return on the Acquisition of a Beneficial Interest in Land must be filed with payment within thirty days after the closing date. Accessed 1 September 2026.
- Table 35-10-0114-01, General civil court cases by type of action — Statistics Canada. Statistics Canada Civil Court Survey, most recent release 26 March 2026 for the 2024/2025 fiscal reference period. The complete type of action dimension is total general civil cases, bankruptcy, collection, other contract, motor vehicle, other tort, probate, other civil action type and unknown, so a partition proceeding falls into an undifferentiated residual category. Accessed 1 September 2026.
About the author — Jatin Dua, Etobicoke real estate agent
I’m the Broker of Record at RE/MAX Quantum Realty, 799 The Queensway in Etobicoke. I write these pages the same way I work a file: read the primary source, quote it, date it, and say plainly where the source is silent or where two sources disagree. If a figure on this page has no citation beside it, that is a mistake and I want to hear about it.
I work with buyers, sellers, renters and investors across Etobicoke, Mimico, Humber Bay Shores, New Toronto, Long Branch, Alderwood and Stonegate–Queensway. connect@jatindua.com or 437-987-1925.