The age old problem of how to keep the young folks on the farm has reached its logical conclusion. Now that our population is aging the parents of the baby boomers are dying and family assets are being passed on to the next generation. To a large extent these assets may include farms, vacation homes, and other real property. What happens when more than one person inherits such a property?

This very situation arose in the case of Hoggard v. Hoggard, a decision of Master Joyce in the British Columbia Supreme Court dated November 25, 1996. In this case the parties had inherited two farm properties from their mother six years previously. One of the children lived in the house on one of the properties. Another of the children operated a dairy farm on that same property. The second property was not being used by any of the children. The third child had grown tired of waiting for her inheritance. She obtained appraisals which indicated that the first property was worth $815,000 and that the second was worth $1,300,000. The siblings had previously agreed that the second property should be sold but they could not agree on a price. Now two of them wished to keep both properties in the family but had been unsuccessful in their negotiations with the third with respect to buying her out.

The third child found her remedy in the Partition of Property Act this Act provides that anyone who shares an interest in property whether legal or equitable and whether as owner, mortgagee, or other creditor may be compelled to partition or sell the land or part of it. The sibling who wanted to receive her inheritance applied to the court for an order that both properties be listed for sale and that she have exclusive conduct of that sale.

The court determined that under Section 2 of the Partition of Property Act, the petitioner was at first blush entitled to partition or sale of the land. Unless the respondents could show why justice required that the land not be sold it would be necessary for the court to make such an order. Master Joyce was of the view that the respondents had failed to demonstrate why they should not be compelled to suffer partition or sale of the second property. The petitioner had waited six years to enjoy her inheritance and was entitled to obtain the benefit of it without further delay. Master Joyce ordered that the second property be listed for sale for $1,380,000 and that the petitioner should have joint conduct of the sale with her siblings. The court was not willing, however, to compel the sale of the first property at present because it was home to one of the siblings and an operational farm for the other. The respondents were allowed time to continue their negotiations with their sister in hopes that they could reach an agreement to purchase her interest in that first property.

It is always unfortunate when family disputes get so bad that they must go to court. However, it is good to know that the court is there with the power to resolve such disputes. It is even better to know the principles which the court will apply in determining the appropriate remedy so the parties may resolve matters themselves upon receipt of good advice.

Please call or e-mail me with questions or comments you might have.

August 18, 1997