What you can do when your ex is living in the house and will not sell

Alberta gives you two separate court applications here, and the one most people have heard of is not the one that ends with the house sold: an order for exclusive possession settles who lives in the home, while an application to terminate the co-ownership is the one that can put it on the market and can let one of you sign the sale documents when the other refuses. The province charges $200 for the first and $300 to commence the second, and the two of them can point in opposite directions, because an order that lets someone stay can outrank an order to sell.

This is written for the owner who has moved out, or wants to, and is carrying a house they cannot list. If the house has gone backwards through a long separation, the way we buy houses that need work is the part of our side that matters, and the signature problem below comes first either way.

One application settles who lives there, the other one ends with a sale

The first is an order for exclusive possession of the family home, and it does more than the name suggests. Under section 19 of the Family Property Act, as the Alberta Law Reform Institute sets it out, the Court can direct that one spouse or adult interdependent partner be given exclusive possession, can direct that the other be evicted, and can restrain them from entering or attending at or near the home. The Centre for Public Legal Education Alberta puts the plain version at the top of its page, that an order "allows one spouse/partner to live in the family home" and "orders the other person to move out."

Its reach is wider than its name, and in the Centre's words, "You can apply if you rent or own your home, even if your name is not on the lease or title of the home." You file it at the Court of King's Bench, and the province states the price on its page on the application: "The application fee is $200." That page also says the order "only stays in place until the couple or the court decides" who stays and how the assets are divided, so it is temporary by design.

Where safety is the reason you are reading this, the route is a different one. The Centre's booklet on these orders says plainly that "If you are experiencing family violence, the process is different", and that "You can apply for exclusive possession of the home under the Protection Against Family Violence Act" instead. That is an application your own lawyer should be making quickly, and the rest of this page can wait.

The second application is the one that actually sells. Section 15 of the Law of Property Act lets a co-owner apply to end the co-ownership, and what the Court must then do is the part worth knowing. The Calgary firm Carscallen writes that "An order under section 15(2) of the Act is mandatory", and that on such an application "the Court must order one of three legal remedies available under the Act", those being a physical division of the land, a sale with the proceeds distributed, or a buyout by one of the co-owners. The mechanics are set out in selling a house when the owners disagree, and one point from there is worth repeating because separating couples get it wrong: the University of Calgary Faculty of Law notes that under the current Act "the request of an owner of a half interest or more does not garner any special consideration."

A bigger share does not buy you a presumption, and the commencement fee for an originating application in that court is published by the province at $300. Ask your own lawyer which application fits your facts before you file anything.

A possession order on the title turns one signature into two

Possession and paperwork meet at the land titles office, and this is the connection almost nobody publishes. The Centre's booklet tells readers to register the order, that "To protect yourself, you can register the Exclusive Possession Order against the title of the home at Alberta's Land Titles Office", and registration is permissive rather than automatic, so the lock below bites only once somebody files it.

What the lock does is set out at section 22(3) of the Family Property Act, and the Alberta Law Reform Institute describes the effect in a single sentence in its 2021 report on dower consent: "If one or both spouses or partners owns the home, the spouse or partner living in it can prevent a sale, mortgage, or other disposition." The Centre says the same thing from the seller's side, that "While the order is in place, you and your spouse or partner both must consent to selling the home." There is an exit, and it is in the provision itself, because the consent runs in writing from the person in possession or, failing that, under a further order of the Court.

Now put the two orders beside each other, because they are not equal. Crossroads Law, writing in 2023, says that "the courts have made it clear that an exclusive possession order made under the FPA will supersede any order made under the LOPA", the second of those being the Act partition and sale comes from. That is the trap: winning an order to sell does not by itself beat an existing order letting your ex stay, and nobody on the first page of search results for this question says so.

Dower is a second and separate lock on a title in one name, and the Law of Property Act ties the two together by listing among the things the Court weighs on a partition application whether a co-owner holds rights they would be compensated for under the Dower Act. Which dower document the registry wants is in the consent form and the signings it takes, and who signs in a separation is the whole subject of Monday's article.

The court can let one of you sign, and it can hold the money

Here is the sentence that changes what a stuck seller thinks is possible, and it comes from Alberta's own public legal education body rather than from anyone selling anything. On its page about the home, reviewed in June 2024, the Centre for Public Legal Education Alberta writes that a partition and sale order is made under the Law of Property Act, and that "The court can also allow only one person to sign the documents to sell the home if the other person refuses to cooperate with moving the sale forward."

The court's grip on the sale goes further than the signature. The Centre says "The court can direct each step of the sale process from who the real estate agent is, what the price will be and when those living in the home must move out", and that where someone "is living in the home but not cooperating on dealing with it, the court can make decisions." A refusal to vacate is a thing the Court can address inside the sale itself rather than a wall in front of it.

Then the money, which is where the common assumption is wrong and expensively so. Most people believe a sale has to wait until the division of property is settled, and the Centre says otherwise, that if you cannot agree how to divide the proceeds "the court may hold the money until you get an order dividing property." The house can be sold while the argument continues over an amount sitting in the middle, which matters in Alberta more than in most of the country, because Alberta values family property as at the date of the trial rather than the date you separated. None of this is legal advice, so have your own lawyer confirm what your file can be made to do.

What the one living in the house may owe for living in it

Occupation rent is the lever the spouse who left tends not to know exists. The Law of Property Act sets out what the Court weighs when adjusting between co-owners, and a Legal Education Society of Alberta conference paper reproduces that list, including whether one co-owner has excluded another from the land, and whether "an occupying co-owner claiming non-capital expenses in respect of the land should be required to pay a fair occupation rent".

The condition in that second clause is the whole of it, and the Alberta firm Arch Law Office states the rule the way practitioners use it, that under section 17 of the Law of Property Act occupation rent "may only be used as a 'shield' and not a 'sword'", meaning that if the person in the house claims a contribution to expenses, the one who is out can claim occupation rent in answer. It is usually triggered by the occupier asking for help with the bills, not by your asking for rent. On the amount, that firm writes that "Typically, the occupation rent award is half of the fair market rental value of the house." The Centre says the same in plainer language, that the person with exclusive possession may have to compensate the other "for the other person's high living costs, which is known as occupation rent."

It is also an adjustment made at the end rather than money arriving now, while the mortgage and the taxes go out every month, so put it to your own lawyer as one line in the arithmetic rather than as a plan.

Listing it, fixing it first, or selling to a direct buyer

If the two of you can agree to a listing, list it. An open market with a Realtor will beat any direct offer including ours, and the gap is widest on a house in decent shape with time to sit on the market properly. What that route costs on the way through, from the commission to the lawyer to the mortgage payout, is in the cost of selling a house in Alberta.

Repairing first and then listing assumes the most cooperation of any route, and it is the one that fails most often in a separation, because somebody has to fund the work, somebody has to let trades into a house they are living in, and both of you have to agree on what gets done.

Selling to a direct buyer is narrow and we will say where it stops. We will not buy from one registered owner over the objection of the other, we will not take a transfer the dower paperwork does not support, and we are not the people to settle who gets how much. Where it earns its place is a house that needs work neither of you will fund, or carrying costs on a place you have already left, or a closing date you both need to plan anything else around. How we buy takes out the showings, the part that is nearly impossible with an unwilling occupant, and runs as little as seven to ten days with two to three weeks more usual, and what we pay is written out rather than implied. As Matthew puts it: "If your house is in good to great condition and you're not in a hurry, listing with a Realtor may be a better option, and I'll tell you so to your face."

Before you call anybody, order the current certificate of title and read what is registered against it, because an exclusive possession order or a certificate of lis pendens sitting there changes which route is open to you at all. Have that, the address, who is living in the house now and any deadline you are working to, and write to us if you want a read on the house while your lawyer works on the order.