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  • 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.

1979-311-6.

CASE LAW

Baseless Assertion of Trust No Good Reason to Not Grant Order for Sale

The appellate court found that the chambers judge below did not err in granting an order for sale of real estate owned by two brothers, Rick and Kelvin, pursuant to s. 6 of the Partition of Property Act. The brothers had become registered owners of the property as joint tenants following the 1988 transfer, for no consideration, of the interests of Rick and their mother, who had been registered owners as joint tenants. Kelvin formally severed the tenancy in 2018 by transferring his interest to himself and registering the transfer in the land title office. Section 6 of the Partition of Property Act required the court to grant the application in a case such as this, unless there was “good reason to the contrary”. Rick pleaded that Kelvin had been placed on title in 1988 as a trustee for Rick, contrary to the presumption created by s. 23 of the Land Title Act; the court said the onus was on Rick to assert some basis for his defence. It was the mother of the two brothers who gave up an interest in the property; she, not Rick, would have been the beneficiary of any resulting trust. The trial judge found that Kelvin was the legal and equitable owner of his half share (Soo v. Soo, 2020 BCCA 149).