Under Law of Property Act, provincial courts can physically divide land or property if the co-owners cannot agree. Consequently, before you sell co-owned property in the province, it is in the interest of both parties to agree.
If you intend to sell a co-owned home or property traditionally in Alberta, below is what you need to know:
Note: Sweetly’s Swift Sale can make it easier to sell a jointly owned property. With a Swift Sale you’ll receive an initial payment based off of appraised value. If your house sells for more, then you’ll receive the overage as well.
Quick take: How to sell a co-owned house in Alberta
- If you disagree with the sale of co-owned property, you have the right to go to court and stop or pause it.
- If a co-owner refuses to sell, you have the option to force the sale, or you may buy them out.
- Alberta’s Matrimonial Property Act applies to married spouses and adult interdependent partners.
- Property co-owners may make an out-of-court property sale agreement. However, the agreement must be in writing, and both parties must sign voluntarily. That means the agreement is invalid if either party is forced or tricked to sign.
- You must serve a written notice to a co-owner before selling your share of co-owned property.
- You have 6 months to dispute a sale if you receive written notice.
- File a lawsuit as a last resort because it can be expensive, and there is no guarantee that the court will rule in your favor.
Related Links:
How to sell your home during a divorce
Dower rights in Alberta
What happens when you inherit a house?
What happens if one person wants to sell a house in Alberta and the other does not?
Alberta’s Partition and Sale Act require that for a court to order the sale of a shared property, the sale must be, quote:
“If sale would be more beneficial than physical division of the property, the court has a discretion to order it. (The word “beneficial” relates to the nature of the property, the number, absence, or disability of parties, or “any other circumstances). “
University of Calgary Faculty of Law
That means if the sale of a co-owned property or home is likely to cause undue hardship to the affected person, the court may block the sale.
If you find yourself in a scenario where you want to sell, and a family member or a co-owner refuses to sell, it is advisable to first negotiate or get the person on board with the sale. That way, you can avoid legal problems or family conflicts that may arise.
Remember, section 4 reads:
“If the owner of a half or greater interest asks for the sale, the court must give it unless it sees good reason to the contrary.”
Sweetly can help make the process of selling a jointly owned property easy by providing an upfront payment based on the home’s appraised value.
The court may block the sale of jointly owned property in Alberta for the following reasons:
- The sale is malicious, unfair, vexatious, oppressive, or may cause undue hardship on the person occupying the property.
- If the sale negatively impacts the children of the party residing in the home or property.
- If the highest amount offered for the purchase of the land is less than the market value.
In short, if you want to block the sale of a home or property, you must provide a “good reason” for your interest to remain in the home. Section 27 of the Alberta Law of Land Act states that, quote:
“Notwithstanding any agreement between co-owners of the land, the Court may make an order terminating the co-ownership if the continuance of the co-ownership will cause undue hardship to one or more of the co-owners.”
University of Calgary Faculty of Law
How long do you have to be in a relationship to receive half in Alberta?
In Alberta, you become an “adult interdependent partner” after three years in a relationship. Consequently, if you have lived with your partner continuously for three years, you may need consent before you sell the family home or property.
For married couples, it is vital to understand that your spouse has dower rights unless a prenuptial agreement specifies otherwise. Dower rights prevent you from selling the home without consent from your spouse.
What to remember
- If you sell a jointly owned property without consent, your co-owner may go to court to prevent the sale. The co-owner may also be entitled to 50% or more of the proceeds from the sale.
- Dower rights only apply to legally married spouses.
You may sell your share of the property
Provincial laws allow you to sell your share of a home or property on the condition that an existing agreement allows it and that you disclose accurately to the buyer the condition of the sale. If you lie to the buyer, you risk a lawsuit from the buyer and the co-owner.
What if the home has a mortgage?
If the home has a mortgage, your lender may require you to settle the full amount because of the “Due on Sale Clause.” Consequently, you must consult with your mortgage lender and the co-owner before you list your half of the property. If your home has a mortgage, it may be in your best interest to utilize a program like Sweetly’s Swift Sale; the upfront payment based on appraised value allows you to pay off any mortgage on the day that you choose.
Alberta’s right of first refusal
Alberta’s Law of Property Act section 63(1) states that, quote:
“The following are equitable interests in land (a) a right of first refusal to acquire an interest in land (b) an assignment of rents payable pursuant to a lease of land. (2) After registration of a caveat under the Land Titles Act protecting an equitable interest referred to in subsection (1), the equitable interest takes priority in accordance with section 14 of the Land Titles Act and runs with the land.”
A right of first refusal is a contractual right that allows interested parties to be the first to submit an offer. If you intend to sell a jointly owned property, the co-owner may have the right.
If you entered a right of first refusal with the co-owner, the co-owner may block the sale of the property to a third party. That makes it vital to go through the home’s paperwork before you list the property.
Can I sell my house if someone else is on the deed in Alberta?
If someone else’s name is on the deed, you will need consent from the owner before you sell the home or property. However, you may apply for termination of co-ownership. How?
Alberta’s Law of Property Act section 15(1) “application for termination of co-ownership, states that, quote:
“A co-owner may apply to the Court for an order terminating the co-ownership of the interest in land in which the co-owner is a co-owner. (2) On hearing an application under subsection (1), the Court shall make an order directing (a) a physical division of all or part of the land between the co-owners, (b) the sale of all or part of the interest of the land and the distribution of the proceeds of the sale between the co-owners, or(c) the sale of all or part of the interest of one or more of the co-owners’ interests in land to one or more of the other co-owners who are willing to purchase the interest. (3) A sale under subsection (2)(b) or (c) and the distribution of the proceeds of the sale shall be under the direction of the Court. (4) In making an order under subsection (2)(c), the Court shall fix the value of the land sold and the terms of the sale.”
University of Calgary Faculty of Law
There are two ways to terminate a joint tenancy in Alberta:
- Through a court judgment.
- Agreement.
We recommend the latter because it is less time-consuming and cheaper.
To change title ownership in Alberta. Start here.
What to remember
- If the property owner loses mental capacity, it is up to the co-owner to make decisions about the property.
- If the property owner dies, joint-owned property may transfer to the surviving co-owner.
How long will it take to force the sale of a property in Alberta?
If the co-owner appeals the sale of a jointly owned property, the court will make the final judgment. The hearings and complexity of the case will determine how long it will take to force a sale.
We recommend consulting with a real estate attorney.
Sweetly has some programs that are beneficial for people who are dealing with selling a jointly owned property. We make it easy by having the home appraised and then giving the owners market value, less our fee.
Sweetly’s Models
Sweet Sale
With the Sweet Sale, you get a Fair Price Cash Offer. It’s a fair offer that lets you sell without showings and choose your own moving day.
Start your sale with a Free, Fair Price Cash Offer, which remains open to you for 60 days. Activate our offer any time – even without listing/showing your home, or at some later date if your home isn’t selling. Compare our hassle-free, all-Cash offer to a traditional MLS® listing. Make an informed decision. Choose what’s best for you. Offers remain open to our customers for 60 days. Our offer is withdrawn if you list with an outside REALTOR®.
Listing With Confidence
A traditional listing allows you to test the market with your price. A listing with Sweetly comes with it’s own set of perks.
- Test the market with confidence, knowing you’ll have a Sweet Sale available if your home doesn’t sell.
Start with an fair price cash offer to know the current value of your home. Then, decide ‘how’ you want to sell, BUT before you do, you can shop at your pace to find the right house. Beat out any competing buyer because you won’t need a ‘condition of sale’ so your offers are stronger without spending extra money. Once you have a firm purchase you can sell your house to Sweetly on a day that works best for you.
How to buy out jointly-owned property
You may file a partition action if you intend to sell a jointly owned property or make an agreement with the co-owner. For legal reasons, work with a real estate attorney and ensure that all agreements are in writing.
We recommend making a reasonable buyout offer. If the parties do not agree, you may go to court as a last resort.
What is partition action?
If you file a partition action, the court will decide how to partition the land or property, considering the following factors.
- Current market value/the property’s appraisal report. You may have to get a home appraisal before going to court.
- The home’s mortgage.
- The legal interests of each party.
- The welfare of individuals affected by the partition or sale.
