This archived statute consolidation is current to November 25, 1993 and includes changes enacted and in force by that date.

Partition of Property Act

[RSBC 1979] CHAPTER 311

[Act administered by the Ministry of Attorney General]

Contents
Section
  1.  Interpretation
  2.  Parties may be compelled to make partition or sale
  3.  Form of proceeding and its incidents
  4.  Parties to proceeding and persons entitled to notice of decree
  5.  Proceedings where parties cannot be served
  6.  Sale of property where majority requests it
  7.  Order sale in place of partition
  8.  Purchase of share of person applying for sale
  9.  Persons under disability
  10.  Court may allow parties interested to bid
  11.  Money arising from sale subject to court order
  12.  Application of money without court order
  13.  Investment of money
  14.  Interests of persons where service of notice dispensed with
  15.  Abatement made in favour of parties previously excluded
  16.  Costs
  17.  Application of Land Title Act

Interpretation

1.  In this Act

"court" means the Supreme Court;

"general orders" includes Rules of Court;

"judgment" includes decree or order;

"land" includes special timber licences, and all estates and interests in them;

"petitioner" or "plaintiff" includes all parties petitioning under this Act;

"defendants" includes all parties, or those made parties, to the proceedings under this Act, other than the plaintiffs or petitioners.

Historical Note(s): RS1960-276-2; 1976-33-103.

Parties may be compelled to make partition or sale

2.  All joint tenants, tenants in common, coparceners, mortgagees or other creditors having liens on, and all parties interested in, to, or out of, any land may be compelled to make or suffer partition or sale of the land, or any part of it as provided in this Act, and the partition may be had whether the estate is legal or equitable or equitable only; except that in respect of special timber licences no partition shall be made of a single licence, and any odd licences not possible to assign by partition to any of the parties interested shall be ordered to be sold.

Historical Note(s): RS1960-276-3.

Form of proceeding and its incidents

3.  For the purposes of this Act, a proceeding for partition includes a proceeding for sale and distribution of the proceeds. In a proceeding for partition it is sufficient to claim a sale and distribution of proceeds, and it is not necessary to claim a partition.

Historical Note(s): RS1960-276-4; 1976-33-103.

Parties to proceeding and persons entitled to notice of decree

4.  Any person who, if this Act had not been passed, might have maintained a proceeding for partition may maintain such a proceeding against any one or more of the parties interested without serving the other or others, if any, of those parties, and it is not competent to any defendant in the proceeding to object for want of parties. At the hearing of the proceeding the court may direct inquiries as to the nature of the property, the persons interested in it and other matters it thinks necessary or proper, with a view to an order for partition or sale being made on further consideration; but all persons who, if this Act had not been passed, would have been necessary parties to the proceeding shall be served with a notice of the judgment on the hearing, and after the notice are bound by the proceedings as if they had been originally parties to the proceeding, and all those persons may have liberty to attend the proceedings, and may, within a time limited by general orders, apply to the court to add to the judgment.

Historical Note(s): RS1960-276-5; 1976-33-103.

Proceedings where parties cannot be served

5.  Where in a proceeding for partition it appears to the court that notice of judgment on the hearing of the proceeding cannot be served on all the persons on whom that notice is required by this Act to be served, or cannot be so served without expense disproportionate to the value of the property to which the proceeding relates, the court may, if it thinks fit, on the request of any of the parties interested in the property and notwithstanding the dissent or disability of any others of them, by order, dispense with that service on any person or class of persons specified in the order, and instead may direct advertisements to be published at the times and in the manner the court thinks fit, calling on all persons claiming to be interested in the property who have not been so served to come in and establish their respective claims before the court within a limited time. After the expiration of the limited time, all persons who have not come in and established claims, whether they are in or out of the jurisdiction of the court, including persons under any disability, are bound by the proceedings as if on the day of the date of the order dispensing with service they had been served with notice of the judgment service of which is dispensed with, and thereon the powers of the court under the Trustee Act extend to their interests in the property to which the proceeding relates as if they had been parties; and the court may then, if it thinks fit, direct a sale of the property, and give all necessary or proper consequential directions.

Historical Note(s): RS1960-276-6; 1976-33-103.

Sale of property where majority requests it

6.  In a proceeding for partition where, if this Act had not been passed, a judgment for partition might have been given, then if the party or parties interested, individually or collectively, to the extent of 1/2 or upwards in the property to which the proceeding relates should request the court to direct a sale of the property and a distribution of the proceeds instead of a division of the property between or among the parties interested, the court shall, unless it sees good reason to the contrary, direct a sale of the property accordingly, and give all necessary or proper consequential directions.

Historical Note(s): RS1960-276-7; 1976-33-103; 1977-31-13.

Order sale in place of partition

7.  In a proceeding for partition where, if this Act had not been passed, a judgment for partition might have been given, then if it appears to the court that by reason of the nature of the property to which the proceeding relates, 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 parties interested than a division of the property between or among them, the court may, if it thinks fit, on the request of any of the parties interested and notwithstanding the dissent or disability of any others of them, direct a sale of the property accordingly, and may give all necessary or proper consequential directions.

Historical Note(s): RS1960-276-8; 1976-33-103.

Purchase of share of person applying for sale

8.  In a proceeding for partition where, if this Act had not been passed, a judgment for partition might have been given, then if any party interested in the property to which the proceeding relates requests the court to direct the sale of the property and a distribution of the proceeds instead of a division of the property between or among the parties interested, the court may, if it thinks fit, unless the other parties interested in the property or some of them undertake to purchase the share of a party requesting a sale, direct a sale of the property, and give all necessary or proper consequential directions. In case of the undertaking being 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 all necessary or proper consequential directions.

Historical Note(s): RS1960-276-9; 1976-33-103.

Persons under disability

9.  In a proceeding for partition a request for sale may be made or an undertaking to purchase given on the part of an infant, person of unsound mind or person under any other disability, by the next friend, guardian, committee, if so authorized by the committeeship order, or other person authorized to act on behalf of the person under the disability; but the court is not bound to comply with the request or undertaking on the part of an infant unless it appears that the sale or purchase will be for his benefit.

Historical Note(s): RS1960-276-10; 1975-73-13; 1976-33-103.

Court may allow parties interested to bid

10.  On any sale under this Act the court may, if it thinks fit, allow any of the parties interested in the property to bid at the sale, on the terms as to non-payment of deposit, or as to setting off or accounting for the purchase money or any part of it, instead of paying the same, or as to any other matters, as to the court seems reasonable.

Historical Note(s): RS1960-276-11.

Money arising from sale subject to court order

11.  All money to be received on any sale effected under the authority of this Act, or to be set aside out of the rents or payments reserved, on any lease of earth, coal, stone or minerals may, if the court thinks fit, be paid to any trustees of whom it approves, or otherwise shall be paid into the chartered bank as the court directs, to the account of the registrar of the court in the matter of this Act. In either case the money shall be applied, as the court directs, to some one or more of the following purposes, namely:

(a) the discharge or redemption of any encumbrance affecting the property in respect of which the money was paid, or affecting any other property, subject to the same uses or trusts;

(b) the purchase of other property to be settled in the same manner as the property in respect of which the money was paid; or

(c) the payment to any person becoming absolutely entitled.

Historical Note(s): RS1960-276-12.

Application of money without court order

12.  The application of the money in the aforesaid manner may, if the court so directs, be made by the trustees, if any, without application to the court, or otherwise on an order of the court, on the petition of the person who would be entitled to the possession or the receipt of the rents and profits of the land if the money had been invested in the purchase of land.

Historical Note(s): RS1960-276-13.

Investment of money

13.  Until the money can be applied as aforesaid, it shall be invested as the court thinks fit. The interest and dividends of the investment shall be paid to the persons who would have been entitled to the rents and profits of the land if the money had been invested in the purchase of land.

Historical Note(s): RS1960-276-14.

Interests of persons where service of notice dispensed with

14.  When an order is made under this Act dispensing with the service of notice on any person or classes of persons, and property is sold by order of the court, the following provisions have effect:

(a) the proceeds of the sale shall be paid into court, to await the further order of the court;

(b) the court shall, by order, fix a time at the expiration of which the proceeds will be distributed, and may by further order, extend that time;

(c) the court shall direct notices to be given by advertisements or otherwise, as it thinks best adapted for notifying, to any persons on whom service is dispensed with who may not have previously come in and established their claims, the fact of the sale, the time of the intended distribution and the time within which a claim to participate in the proceeds must be made;

(d) if at the expiration of the time fixed or extended the interests of all the persons interested have been ascertained, the court shall distribute the proceeds in accordance with the rights of those persons;

(e) if at the expiration of the time fixed or extended the interests of all the persons interested have not been ascertained, and it appears to the court that they cannot be ascertained, or cannot be ascertained without expense disproportionate to the value of the property or of the unascertained interests, the court shall distribute the proceeds in the manner as appears to the court to be most in accordance with the rights of the persons whose claims to participate in the proceeds have been established, whether all those persons are or are not before the court, and with the reservations, if any, the court sees fit in favour of any other persons, whether ascertained or not, who may appear from the evidence before the court to have any prima facie rights which ought to be so provided for, although those rights may not have been fully established, but to the exclusion of all other persons, and thereon all other persons shall by virtue of this Act be excluded from participation in those proceeds on the distribution of them; but notwithstanding the distribution any excluded person may recover from any participating person any portion received by him of the share of the excluded person.

Historical Note(s): RS1960-276-15.

Abatement made in favour of parties previously excluded

15.  Where in a proceeding for partition 2 or more sales are made, if any person who has by virtue of this Act been excluded from participation in the proceeds of any of those sales establishes his claim to participate in the proceeds of a subsequent sale, the shares of the other persons interested in the proceeds of the subsequent sale shall abate to the extent, if any, to which they were increased by the non-participation of the excluded person in the proceeds of the previous sale, and shall to that extent be applied in or towards payment to that person of the share to which he would have been entitled to in the proceeds of the previous sale if his claim to it had been established in due time.

Historical Note(s): RS1960-276-16; 1976-33-103.

Costs

16.  In a proceeding for partition the court may make the order it thinks just respecting costs up to the time of hearing.

Historical Note(s): RS1960-276-17; 1976-33-103.

Application of Land Title Act

17.  An order for the partition of land into 2 or more parcels is deemed to effect a subdivision as defined in the Land Title Act and shall contain an express declaration that the order is subject to compliance with that legislation.

Historical Note(s): 1976-2-25; 1978-25-332.