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Selling while separated in today’s hot hot hot market

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Anyone living in the Greater Toronto Area (and even those who are not) are aware of what’s currently happening in the GTA real estate market. Because housing prices are 30% higher than they were this time last year, the Ontario Government implemented various measures on April 20 to curb the market trend including the implementation of:

  • a 15-per- cent foreign buyers’ tax
  • a 5-year, $125-million program to encourage new construction

The long term effects of the 16 measures implemented by the government have yet to be determined, but in the meantime, the Toronto Real Estate Board appears to indicate that prices in the GTA continue to increase.
So the question remains: Is it possible for separating spouses to take advantage of the current hot market trend?

The simple answer is: very likely yes.

The Ontario Partition Act provides that anyone who has an interest in a property has the legal right to a partition and sale of the property. This applies to both married and unmarried spouses. It also applies to matrimonial homes. Basically, any property which is jointly held (whether it be held as tenants in common or joint tenants) is subject to the Partition Act.

This means that if a spouse refuses to consent to the sale of a property, the other spouse can apply to the Superior Court of Justice to obtain an order for the sale. There are particular circumstances in which a Court may delay or refuse the sale. These include:

  • a house that is specialized to a spouse or a child’s need (as an example: a house that is modified to accommodate a physical disability)
  • not wanting to cause the children to move in the middle of the school year

As always, it is important to discuss your particular circumstances with a lawyer but in short, don’t let the fact that you’re separating deter you from trying to take advantage of this hot seller’s market.

About the Author

Annie Noa Kenet has been practicing in the area of family law since her call to the bar in 2007. Annie advocates on behalf of clients at mediations, arbitrations, the Ontario Court of Justice and the Superior Court of Justice.

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