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Real Property - Partition Act (2). Hussein v. Qazi
In Hussein v. Qazi (Ont CA, 2026) the Ontario Court of Appeal considers a moot appeal from a vesting order, here made in a family law-Partitition Act context.
Here the court notes the application of a vesting order remedy to address limitations of the Partition Act:[1] The appellant, Madiha Hussain, and the respondent, Salik Javed Qazi, jointly purchased a residential property in Mississauga as tenants in common. The respondent contributed the initial capital outlay and received a 99 percent interest. The appellant undertook to make “contributions” to the housing costs through “sweat equity” and by making payments to a share of the carrying costs, including a share of the monthly mortgage payments. In return he received a one percent interest in the property as well as the right to 50 percent of the increase in the property’s value after contributing for five years. The relationship soon failed, and the appellant moved out and stopped paying, but not before contributing a meaningful amount to housing costs.
[2] The respondent brought an application seeking an order under the Partition Act, R.S.O. 1990, c. P.4, that would direct the appellant to sell his one percent interest to the respondent at a value determined by the court. Among other relief that is not material to this appeal, she also sought payment of amounts the appellant failed to pay pursuant to their agreement.
[3] The application judge determined that the Partition Act did not authorize a buy-out order, only an order of partition and sale. After respondent’s counsel produced the authority of Newton v. Newton, 2014 ONSC 2757 at the hearing, the application judge made an equitable vesting order pursuant to s. 100 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as had been done in Newton. Although this relief had not been pleaded and the suggestion of an equitable vesting order had not been raised before the hearing, the application judge engaged in two exchanges with the appellant prior to making that order in which the appellant communicated that he did not disagree with transferring his one percent interest if he was to be compensated fairly. The appellant claimed to be owed $65,976.19. The application judge determined his compensation to be $16,357.61 by quantifying his share of the home’s equity ($2,500) and his contributions ($33,816.91 plus $5,122.53) and then subtracting funds the respondent had to contribute after the appellant ceased making payments ($25,081.83). She therefore made the vesting order and ordered that the appellant be paid $16,357.61.
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