COURT FILE NO.: CV-16-553828
DATE: 20210604
SUPERIOR COURT OF JUSTICE - ONTARIO
PROCEEDING COMMENCED UNDER the Partition Act, R.S.O. 1990, c. P.4 and the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 14.05(3)(h) and 66.
RE: CINDY AU DUONG and XIEU AU DUONG Applicants
AND:
LE BINH AU DUONG Respondent
BEFORE: Mr. Justice Chalmers
COUNSEL: D. Van Sickle, for the Applicants
HEARD: June 2, 2021
In Writing
ENDORSEMENT
Overview
[1] The Applicants, Cindy Au Duong and Xieu Au Duong and the Respondent, Le Binh Au Duong are siblings. They are equal co-owners of the property known municipally as 56 Highmark Dr. Woodbridge, Ontario (the “Property”). The Applicants bring this application seeking an order authorizing the sale of the Property pursuant to the Partition Act, R.S.O., c. P.4.
[2] In 2010 the parties purchased the Property as tenants in-common. They each have an undivided one-third interest in the Property. After the purchase, their parents, and the Respondent began residing at the Property. Their parents moved to a new home in May 2020. Since that date, the Respondent continues to live at the Property. She does not pay rent.
[3] The Applicants want to sell the Property. In January 2021, the Applicants delivered a demand letter to the Respondent to vacate the premises so the Property could be marketed for sale. In the letter, the Applicants stated that they would sell the Property to the Respondent but that was not likely possible due to the Respondent’s financial situation. The Applicants also offered to help the Respondent find alternative housing. The Respondent did not respond to the demand letter. The Respondent continues to reside at the Property.
[4] The Applicants propose a plan for the sale of the Property. They engaged a real estate agent and real estate lawyer. The agent, Indra Kissoon inspected the Property in February 2021. She recommends that for the Property to be sold at the highest price, the Property should be vacated, professionally cleaned and staged. She recommends that the Property be listed for sale at $1,489,999. She recommends that the Property be listed for sale as soon as possible to take advantage of the seller’s market in Toronto.
[5] The Notice of Application was served on the Respondent on March 14, 2021. The Respondent did not file a Notice of Appearance.
Analysis
[6] A co-owner has a prima facie right to a sale of the property: Afolabi v. Fala, 2014 ONSC 1713 (SCJ), at para. 27. Section 3 of the Partition Act provides;
[a]ny 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] A request made by an owner of a property for partition and sale will be denied only in exceptional circumstances. A court has discretion to refuse the partition and sale if there is malicious, vexatious or oppressive conduct on the part of the party requesting the sale. The onus is on the party opposing the partition to establish that there was malicious, vexatious and oppressive conduct: Osborne v. Myette, 2004 CarswellOnt 3331, at para. 16 and 19 (SCJ). A request for a sale by a joint owner cannot be, in and of itself, vexatious: Kaphalakos v. Dayal, 2016 ONSC 3559 para 26.
[8] Here, the Respondent has not responded to the Application. No evidence was submitted that the Applicants acted in a malicious, vexatious or oppressive manner. Based on the sale plan put forward by the Applicants, I am satisfied that the Property will be sold for the maximum price. This will benefit the Respondent as a one-third owner of the Property.
[9] To properly market the Property, it will be necessary that the home be vacated. The Applicants propose that the Respondent be ordered to vacate the Property within fourteen (14) days. The Applicants concede this is a short timeline but argue that the Respondent has known since January 2021 that the Applicants are seeking vacant possession. The Applicants offer to help the Respondent relocate to a temporary residence pending the sale of the Property and to assist the Respondent in finding a more permanent residence when the Respondent receives her share of the sale proceeds.
[10] It is in the interests of all parties, including the Respondent, to list the Property for sale as soon as possible to take advantage of the current Toronto real estate market. The realtor will require at least one week of vacant possession to clean and stage the Property. It is my view that a reasonable amount of time for the Respondent to find alternative accommodations is three weeks. I order the Respondent to vacate the Property by June 30, 2021.
Disposition
[11] The Applicants are entitled to sell the Property. The Applicants shall pay from the sale proceeds, Martin Wu’s legal fees, the real estate commissions, property taxes, unpaid utilities and any other expenses incurred and paid in the ordinary course of the sale of the Property. The net proceeds of the sale of the Property shall be equally distributed (one-third each) as amongst the Applicants and the Respondent.
[12] I am satisfied that the Sale Plan put forward by the Applicants is reasonable in all of the circumstances. I authorize and direct the Applicants to retain the realtor, Ms. Kissoon and to list the Property for $1,489,999 and to accept an offer that meets or exceeds the list price. I also authorize and direct the Applicants to retain real estate solicitor, Martin Wu to act as their real estate lawyer on the sale of the Property. The Applicants are authorized to execute on behalf of the Respondent, any documents necessary to effect the sale of the Property including the listing agreement, the Agreement of Purchase and Sale, Mr. Wu’s retainer agreement and the documents on the closing of the sale.
[13] I order the Respondent to deliver vacant possession of the Property by June 30, 2021. I order that the Applicants are granted leave to issue a Writ of Possession, but the Applicants shall not enforce the Writ of Possession unless the Respondent fails to deliver vacant possession by June 30, 2021. If the Respondent fails to deliver vacant possession by that date, the Applicants are authorized to remove the Respondents property and have the property stored at the Respondent’s expense.
[14] The Applicants seek payment of their costs. The Applicants submitted a Bill of Costs in the amount of $14,341.66 on a full indemnity basis. The Respondent failed to respond to the Applicants’ demand letter or to the Notice of Application. There is no reason provided for the failure to consent to the sale. The Applicants were required to incur the expense to obtain this order and I am satisfied the Applicants are entitled to their costs. I award costs of this Application to the Applicants fixed in the amount of $5,000 inclusive of counsel fee, HST and disbursements.
[15] I remain seized should any issues arise with respect to the sale of the Property.
[16] Order to go in accordance with the draft order filed and signed by me.
Date: June 7, 2021