Partition of Property Act

Partition of Property Act 347 1996 1922970521/96347/tlc96347_f E3tlc96347 Definitions 1 In this Act: court means the Supreme Court; land includes special timber licences, and all estates and interests in them; proceeding for partition includes a proceeding for sale and distribution of the proceeds. Parties may be compelled to partition or sell land 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. 3 In order to achieve partition, special timber licences may be assigned to any of the interested parties. 4 Despite subsection (3), a special timber licence must not be partitioned and any special timber licences left over after the others have been assigned, must be ordered to be sold and the proceeds distributed among the interested parties in order to achieve partition. Pleadings 3 In a proceeding for partition it is sufficient to claim a sale and distribution of proceeds, and it is not necessary to claim a partition. Parties to proceeding and persons entitled to notice 4 1 Any person who, if this Act had not been passed, might have maintained a proceeding for partition may maintain such a proceeding against any one or more of the interested parties without serving the other or others, and a defendant in the proceeding may not object for want of parties. 2 The court may order inquiries as to the nature of the property, the persons interested in it and other matters it thinks necessary or proper, with a view to an order for partition or sale being made on further consideration, but all persons who, if this Act had not been passed, would have been necessary parties to the proceeding must be served with a notice of the order. 3 Persons served with notice under subsection (2) a are bound by the proceeding as if they had been originally parties to the proceeding, b may participate in the proceeding, and c may apply to the court to amend the order. Proceedings if parties cannot be served 5 1 If in a proceeding for partition it appears to the court that a copy of an order under section 4 cannot be served on the interested parties, or cannot be served without expense disproportionate to the value of the property involved, the court may, if it thinks fit, on the request of any of the interested parties and despite the dissent or disability of any of them a dispense with service on any person or class of persons specified in the order, and b order that notice of the order be published at the times and in the manner the court thinks fit, calling on all persons interested in the property who have not been served to apply to establish their claims before the court within a period specified in the order. 2 After the period specified in an order under subsection (1), a all persons who have not applied to establish their claims, whether they are in or out of the jurisdiction of the court, including persons under any disability, are bound by the proceedings as if on the day of the date of the order dispensing with service they had been served with a copy of the order under section 4, b the powers of the court under the Trustee Act extend to the interests of persons referred to in paragraph (a) in the property involved as if they had been parties, and c the court may order a sale of the property and give directions. Sale of property where majority requests it 6 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. Sale in place of partition 7 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 a on the request of any of the interested parties and despite the dissent or disability of any other interested party, order a sale of the property, and b give directions. Purchase of share of person applying for sale 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. 2 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. 3 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. Persons under disability 9 1 In a proceeding for partition, a request for sale may be made or an undertaking to purchase given on the part of an infant, of an adult who is incapable of making decisions relating to the adult's financial affairs or of a person under any other disability, by a the infant's litigation guardian or guardian, b) and (c [Not in force.] d the adult's attorney under an enduring power of attorney. 2 The court is not bound to comply with the request or undertaking on the part of an infant unless it appears that the sale or purchase will be for the infant's benefit. Court may allow interested parties to bid 10 On a sale under this Act the court may allow any of the interested parties to bid at the sale on the terms as to nonpayment of deposit, or setting off or accounting for the purchase money instead of paying it, or as to any other matter that seems reasonable to the court. Money arising from sale subject to court order 11 1 All money to be received on any sale under this Act, or to be set aside out of the rents or payments reserved, on any lease of earth, coal, stone or minerals may, if the court orders, be paid to any trustees approved by the court. 2 If no order is made under subsection (1), the money must be paid into a chartered bank as the court directs, to the account of the registrar of the court in the matter of this Act. 3 Money paid under subsection (1) or (2) must be applied, as the court directs, to one or more of the following purposes: a the discharge or redemption of any encumbrance affecting the property in respect of which the money was paid, or affecting any other property, subject to the same uses or trusts; b the purchase of other property to be settled in the same manner as the property in respect of which the money was paid; c the payment to any person becoming absolutely entitled. Application of money without court order 12 The application of money referred to in section 11 may, if the court so orders, be made by the trustees, if any, without application to the court, or otherwise on an order of the court, on the petition of the person who would be entitled to the possession or the receipt of the rents and profits of the land if the money had been invested in the purchase of land. Investment of money 13 1 Until the money can be applied as required under this Act, it must be invested as the court thinks fit. 2 The interest and dividends of the investment must be paid to the persons who would have been entitled to the rents and profits of the land if the money had been invested in the purchase of land. Interests of persons if service of notice dispensed with 14 1 If an order is made under this Act dispensing with the service of notice on any person or classes of persons, and property is sold by order of the court, the following provisions apply: a the proceeds of the sale must be paid into court to await the further order of the court; b the court must, by order, set a time after which the proceeds will be distributed, and may by further order extend that time; c the court must order notice to be given by advertisements or otherwise to any persons on whom service is dispensed with who may not have previously come in and established their claims, notifying them of i the fact of the sale, ii the time of the intended distribution, and iii the time within which a claim to participate in the proceeds must be made; d if at the end of the time set or extended the interests of all the persons interested have been ascertained, the court must distribute the proceeds in accordance with the rights of those persons; e if at the end of the time set or extended the interests of all the persons interested have not been ascertained, and it appears to the court that they cannot be ascertained or cannot be ascertained without expense disproportionate to the value of the property or of the unascertained interests, the court must distribute the proceeds i in the manner that appears to the court to be most in accordance with the rights of the persons whose claims to participate in the proceeds have been established, whether all those persons are or are not before the court, and ii with the reservations, if any, the court sees fit in favour of any other persons, whether ascertained or not, who may appear from the evidence before the court to have any clear rights that ought to be provided for, although those rights may not have been fully established. 2 If an order is made under subsection (1) (e), all other persons are excluded from participation in those proceeds. 3 Despite a distribution under subsection (1) of the proceeds of a sale, any person excluded under subsection (2) may recover from any participating person any portion received by that person of the excluded person's share. Abatement in favour of parties previously excluded 15 If 2 or more sales are made in a proceeding for partition and any person who has been excluded under this Act from participation in the proceeds of any of those sales establishes a claim to participate in the proceeds of a subsequent sale, the shares of the other persons interested in the proceeds of the subsequent sale a abate to the extent, if any, to which they were increased by the non-participation of the excluded person in the proceeds of the previous sale, and b must to that extent be applied in payment to that person of the share to which the person would have been entitled in the proceeds of the previous sale if the claim to it had been established in time. Costs 16 In a proceeding for partition the court may make an order it thinks just respecting costs up to the time of hearing. Application of Land Title Act 17 An order for the partition of land into 2 or more parcels is deemed to effect a subdivision as defined in the Land Title Act and must contain an express declaration that the order is subject to compliance with that Act.