Forced Sale of Home
Who gets the family home – typically one of the most contentious issues when property is being divided. Unfortunately, it’s not always possible for one of the parties to retain the family residence, often because the spouse keeping the property must be able to pay any equalization payment owing, and qualify to take over the mortgage and associated lines of credit.
What results? A forced sale of the home.
On occasion, one of the spouses may not agree to list the property for sale even if this must be done. A number of reasons may be at the heart of this reluctance: not wanting to move, a desire to delay, lack of consensus on the value of the property, differences on the conduct / control of the sale. When disagreement occurs, an application to the Court often results, requiring the forced sale. And in both British Columbia and Alberta, the sale can proceed regardless of whether both parties consent.
In determining if a sale is appropriate, there is no single test for the Court’s use. The Court considers all relevant factors affecting a sale, in particular whether or not either spouse qualifies to take over the mortgage at a later date (once child and spousal support has been determined). Sometimes, it is premature to order the sale of the matrimonial property and the Court will determine that an application can be made again later if the matter is not settled. In general terms, if it is possible for one of the spouses to retain the home, this is the preferred outcome and the Court will give both spouses a reasonable opportunity to qualify for financing or make the necessary arrangements.
When a forced sale is unavoidable, the Court will consider whether sole conduct over the sale by one party is necessary or will expedite the sale. Considerations such as who is residing in the property and the parties’ history of co-operation will influence the Court’s decision on sole conduct of the sale. If a party has been dishonest, or has engaged in practices such as attempting to hide funds, it is much less likely that they will be allowed to conduct the sale. Also The Court’s power: setting the listing price and accepting a third party offer.
At Coach My Case, the legal team knows the deal with forced sales of matrimonial homes and division of property. To better understand the process of judge as realtor, give us a call today.
