CITATION: Cosentino v. Cosentino et al., 2015 ONSC 2694
COURT FILE NO.: CV-14-506327
DATE: 20150601
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Robert Cosentino, Applicant
AND:
Cesare Christopher Cosentino, Giuseppe Cosentino, Edda Cosentino, 547907 Ontario Ltd., Sam Cosentino and Maria Cosentino, Respondents
BEFORE: C. J. Brown J.
COUNSEL: Louis Vittas, for the Applicant
Eric Turkienicz and Paul Neil Feldman, for the Respondents
HEARD: April 20, 2015
ENDORSEMENT
[1] The applicant brings this application for an order for sale of land owned by all of the parties as tenants in common, on the basis that the parties are not agreed as to how to proceed.
[2] The parties to this application are tenants in common and members of the same family. The land is vacant, undeveloped and uninhabited. The land was originally purchased in 1969 by Vincente Cosentino, Maria’s husband and the other parties’ father, along with Domenic Cosentino, the applicant’s uncle. It was purchased as an undeveloped investment property. In 1994, Vincente Cosentino acquired 100% ownership in the lands. In 2006, he transferred various interests to his wife, Maria, and their children. He died in 2009.
[3] Based on the evidence, the applicant has a 12.62% ownership interest in the land. Two of the respondents, Giuseppe and Edda, have signed a consent indicating that they are in agreement with the application. Giuseppe holds a 5.05% interest, and Edda a 15.15% interest. Sam, who was also in attendance and representing himself at the hearing of the application, holds a 4.95% interest and is not opposed to the application. The respondents, Cesare and his numbered company (collectively “Chris”), together own a 17.67% interest in the lands. The balance of the interest in the lands is owned by their mother, Maria, who was not represented by counsel at the hearing of the application. Maria has chosen not to take a position on this application in light of the disagreement among her children regarding what should be done.
[4] In 2013, the lands where listed for sale by all but Chris, who would not sign the listing agreement. Given that the siblings could not agree, Maria subsequently withdrew her agreement to sell. The applicant now seeks a court-ordered sale of the lands, relying on ss. 2 and 3 of the Partition Act, R.S.O. 1990, c. P.4 (“Partition Act”).
[5] It is the position of the responding party, Chris, that the application should be dismissed. However, his alternative position is that the lands should be partitioned and not sold. He argues that he would be adversely affected by a sale of the lands, as he owns a partitioned portion of the lands abutting the lands at issue in this application. He states that he could or would be disproportionately affected by a sale, living next to the lands. Relying on Garfella Apartments Inc. v. Chouduri, 2010 ONSC 3413 at para. 11, he maintains that there is a presumption in favour of partition rather than sale and that the applicant has not tendered any evidence to rebut that presumption.
[6] Sections 2 and 3 of the Partition Act provide as follows:
All joint tenants, tenants in common, and coparceners, all doweresses, and parties entitled to dower, tenants by the curtesy, 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.
(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.
[7] There is therefore a prima facie right to partition or sale of land held between tenants in common. The court may only exercise its discretion to refuse partition or sale in limited circumstances, namely where there is demonstrated malice, oppression or vexatious intent. Oppression can include hardship, i.e. the hardship to the co-tenant resisting partition and sale would be of such a nature as to amount to oppression: see Brienza v. Brienza, 2014 ONSC 6942 at paras. 22-28 (and cases cited therein), [2014] O.J. No. 5742; Greenbanktree Power Corp. v. Coinamatic Canada Inc. (2004), 2004 48652 (ON CA), 75 O.R. (3d) 478 (C.A.), [2004] O.J. No. 5158. Further, in accordance with the wording of s. 3(1), sale is to be ordered where it is “considered by the court to be more advantageous [than partition] to the parties interested.”
Partition
[8] This application was previously adjourned in order to permit the responding party to inquire of the Caledon Township as regards whether it would be possible to partition the land. There is no evidence before this Court of the results of that inquiry. Sam Cosentino, who is a lawyer called to the Bar of Ontario, appeared in person at the hearing of this application and asked to give sworn evidence, a request which I permitted. He stated that the Caledon Township bylaws only permit partition of three parcels of land from the original without presentation of a subdivision plan by the party seeking partition. As the responding party, Chris, did not make application for approval for partition to the Township, with a subdivision plan presented, and because there had already been three parcels of land partitioned from the subject land, Sam submitted that there could be no further partition of the lands without a subdivision plan.
[9] I accept Sam’s testimony on this point and decline to order partition in the circumstances. Partition of the lands may be foreclosed by the lands’ prior partition and the operation of the bylaws of Caledon Township. In other words, the evidence is that these lands may not be suitable for partition: Garfella Apartments, at para. 11. For this reason, I am persuaded that it is more advantageous to the parties to order sale of the lands than partition.
Sale
[10] There are no current appraisals of the land’s value before this Court. The applicant seeks an order that the property be listed for $3 million, citing the listing agreement which was signed by all parties but the respondent, Chris, in 2013. The listing price for the land was $2,995,000 in 2013. However, there is no expert opinion as regards the current value of the lands. The responding party produced several MLS listings as evidence of comparable sales in the region. The listings did not indicate whether the properties listed were actually sold, or at what price. The evidence included two listings for one property, the subsequent one of which reduced the amount by which the property was originally listed. Again, the responding party did not provide an appraisal. I do not find the MLS listings to be of assistance in the absence of information about the sales of the lands and in the absence of greater detail regarding their comparability to the subject land.
Reference
[11] I therefore order a reference to a Master with respect to the conduct of a sale of the lands at issue in this application, in accordance with r. 54.02(2)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“the Rules”). The parties shall provide sufficient information such that the Master will be able to value the lands and set appropriate terms for the sale. Pursuant to r. 66.03 of the Rules, I order that any money realized from the sale of the lands be paid into court, unless the parties agree otherwise.
[12] While the successful party would normally be entitled to costs, in the circumstances of this case, I make no award for costs. All parties shall bear their own costs.
C. J. Brown J.
Date: June 1, 2015