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In This Volume

  • 8 (1) In a proceeding for partition where, if this Act had not been passed, an order for partition might have been made, then if any party interested in the property involved requests the court to order a sale of the property and a distribution of the proceeds instead of a division of the property, the court may order a sale of the property and give directions.
  • (2) The court may not make an order under subsection (1) if the other parties interested in the property, or some of them, undertake to purchase the share of a party requesting a sale.
  • (3) If an undertaking is given, the court may order a valuation of the share of the party requesting a sale in the manner the court thinks fit, and may give directions.



Court May Not Order Sale in Circumstance

Section 8(1) provides that a court may order a sale of the property when a party with less than a one-half interest requests a sale. However, s. 8(2) provides that a court may not order a sale if another party with interest in the property undertakes to purchase the share of the party requesting the sale (Olson v. Miller, 2019 BCCA 274 at para. 65).

Requirements of Undertaking

The requirements of an undertaking pursuant to s. 8 were explained in Rendle v. Stanhope Dairy Farm Ltd., 2003 BCSC 1894 (at para. 22):

Section 8 limits an owner's right of sale where the proposed purchasing owner(s) give an undertaking to purchase. An undertaking in this regard is an unqualified undertaking followed by the determination of value. … [If the] offer does not constitute an undertaking to purchase as contemplated by s. 8(2) of the Act … the court may order partition and sale.

Orders Made Where Court Could Not Determine Value

The parties were joint owners of real property—the petitioners as to one-third, the respondents as to two-thirds. In November 2018, the respondents offered to buy the petitioners’ one-third interest, based on an appraisal they had obtained (the “MacIntosh appraisal”) that valued the property at $2.175 million. The petitioners obtained an appraisal (the “JRC appraisal”) that the value of the property was $3.45 million; in addition, the petitioners commissioned a review of the MacIntosh appraisal, which set out why the MacIntosh appraisal should not be relied upon. The petitioners applied under s. 7 of the Partition of Property Act for an order that the property be sold and apportioned. The respondents said the order should be under s. 8(2), in light of their allegedly unconditional offer to purchase the property. In court, the respondents’ counsel said that his clients were prepared to unconditionally undertake to purchase the petitioners’ one-third, provided that there was some further process to determine the current value of the property, pursuant to s. 8(2). The court said the MacIntosh appraisal was not prepared for the purposes of litigation and did not meet the admissibility requirements of expert evidence. The JRC appraisal met the requirements for admissibility of expert evidence. Both JRC reports were admissible. Based on the second JRC report, the respondents’ appraisal significantly undervalued the property on the basis of its current limited residential use and not on its anticipated development potential. Given counsel’s assurance, the requirement for an unconditional offer under s. 8(2) was met. The court could not determine the value of the property by having the property go for sale, because s. 8(2) does not contemplate a sale process to determine the value. Further, it was possible that the value stated in the JRC appraisal was no longer a reliable indicator of the value of the property because its value might have decreased in the last 10 months. Therefore, the respondents would have 30 days to either: (1) pay the petitioners $1.1 million for the value of their interest in the property; or (2) obtain, file, and provide to the petitioners an admissible appraisal report (Chohan v. Sohi, 2019 BCSC 2334 (Chambers)).

Requirement of Unconditional Undertaking

The parties were co-owners of a residential property in Surrey purchased in 2017, the plaintiffs as to 65% and the defendants as to 35%. An agreement loosely described their occupancy rights to the premises, comprising a main house (occupied by the plaintiffs) and a laneway house (rented out, with the rent used to contribute to the mortgage). In March 2020, the plaintiffs offered to purchase the defendants’ interest through payment of the defendants’ equity less any share alleged owing for home expenses and “property management fees”. In their original notice of civil claim, the plaintiffs alleged an agreement for sale was reached but commenced a notice of civil claim when the defendants did not complete the transfer on terms the plaintiffs understood to govern. The defendants filed a response; thereafter, one of the defendants filed a petition seeking sale under the Partition of Property Act. The plaintiffs opposed a sale in the petition proceeding and, in their action, relied on s. 8 of the Partition of Property Act as authority that the court could order a sale to them on terms it dictated. By agreement of the parties through counsel, an expert (“Macintosh”) provided a report on fair market value dated December 2020, containing two values: $1,020,000 and $1,037,000. The parties were unable to resolve issues of adjustments for rent and expenses. Without leave of the court, the defendants obtained a further appraisal (“Campbell”), dated March 2021, saying the value of the home was then $1.35 million and estimating its value to have been $1.15 million at the time of the Macintosh appraisal. Because the partition proceedings were not governed by the same rules pertaining to the use of experts and not amenable to Rule 9-7 summary trial proceedings, the plaintiffs obtained an order to convert the petition into an action and that the action and petition be heard together. The plaintiffs chose to proceed under their civil claim, which they significantly amended in March 2021, abandoning allegations of an agreement for purchase and sale and pursuing the purchase of the minority interest under s. 8 of the Partition of Property Act based upon the Macintosh appraisal, arguing it to be determinative of value and the parties’ respective rights. The court said it needed to determine whether the Macintosh appraisal was an expert report and whether the Campbell report could be taken account of, and whether the plaintiffs had provided an unconditional undertaking to purchase such that they could now rely on s. 8. The court dismissed the plaintiffs’ application, saying there was never in the pleadings or affidavit material an unequivocal undertaking to purchase as contemplated by the legislation or any agreement reached to use the Macintosh appraisal for the value of division, although it was authorized to be used in court. It would be unjust to grant the plaintiffs the order sought in the face of clear evidence from both Campbell and a representative of Macintosh that the value of the property had changed significantly since December 2020. Additionally, the plaintiffs never gave an unqualified undertaking to purchase (Nagra v. Joshi, 2021 BCSC 1975 (Chambers)).