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In This Volume

  • 7 In a proceeding for partition where, if this Act had not been passed, an order for partition might have been made, and if it appears to the court that because of the nature of the property involved, or of the number of parties interested or presumptively interested in it, or of the absence or disability of some of those parties, or of any other circumstance, a sale of the property and a distribution of the proceeds would be more beneficial for the interested parties than a division of the property, the court may
  • (a) on the request of any of the interested parties and despite the dissent or disability of any other interested party, order a sale of the property, and
  • (b) give directions.



The plaintiffs sued for breach of a trust agreement under which they provided funds totalling some $760,751 for development of certain lands in B.C. that were never developed. The court rejected the defendants’ argument that part of the proceeding should be transferred to Alberta. The lands were situate in B.C., the defendants had attorned to the jurisdiction of the B.C. courts, and splitting issues between jurisdictions would not be efficient. The court granted the plaintiffs summary judgment, there being no bona fide triable issue because there was no basis on which the defendants could lawfully have sold the plaintiffs’ interests in the loan, as they did, in light of the plaintiffs’ lawful termination of the trust agreement. The plaintiffs were entitled to orders they sought, including the removal of trustees, an order for sale of the lands, conduct of sale, and special costs (Access Mortgage Corp. (2004) Ltd. v. Western Arres Capital Inc., 2020 BCSC 1703 (Chambers), supplementary reasons 2020 BCSC 1892).

Even if the petitioners were minority interest holders entitled to seek an order for sale pursuant to s. 7, the court said the parties had created their own legal framework and obligations outside of the Act by entering into a 2009 agreement that set out their agreed-upon respective interests and obligations and contemplated eventual subdivision (Arden v. Arden, 2021 BCSC 2177). See the summary of this case at “6 Sale of property where majority requests” in this chapter.