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INTERESTS IN LAND - Joint estates - Partition - Severance by other means

Wednesday, September 11, 2019 @ 6:26 AM  

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Appeal by Miller from an order requiring her to sell her interests in two properties to the Hieberts. Miller originally owned the properties, a commercial resort with cabins and RV lots and an adjacent vacant lot, with Olson. Over time, Miller and Olson sold specific cabins and RV lots to the Hieberts but not all the transactions were registered on the resort property’s title. Miller managed the cabins purchased by the Hieberts but did not properly account for rental income. Only Miller and Olson had interests in the vacant lot. The trial judge found the continued co-ownership of the properties was impossible and ownership by the Hieberts was the only viable option. He treated percentage interests of ownership in the vacant lot as being the same as those in the resort property. He ordered the purchase monies he determined the Hieberts owed Miller to be secured by a promissory note payable over time.

HELD: Appeal allowed in part. The order requiring Miller to sell her interests in the properties could not be upheld under the Partition of Property Act but was properly made pursuant to Rule 13-5(1) of the Supreme Court Civil Rules. The trial judge erred in treating the percentage interests in both properties as being the same and in denying Miller the opportunity to establish she owned 100 per cent of the vacant lot. The rough justice adjustment in the Hieberts’ favour for withheld rental income should not have been made. Assuming it was open to the trial judge to order a promissory note, it was an error for him to do so without first giving the parties an opportunity to address the matter. The sale of the properties to the Hieberts was upheld but the question of the purchase price was remitted to the trial court for redetermination.

Olson v. Miller, [2019] B.C.J. No. 1383, British Columbia Court of Appeal, S.D. Frankel, P.M. Willcock and J.E.D. Savage JJ.A., July 26, 2019. Digest No. TLD-September92019009