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  • Writer's pictureJared Davies, Lawyer

Can you buy out the matrimonial home? The recent case of Rastkar v. Soltani, 2024 ONSC 1384

Introduction:

 

The case of Soltani v. Rastkar involves a post-trial dispute over the sale of the matrimonial home. The parties, who separated in 2020, went through a trial, culminating in a Final Order. The order mandated the sale of the home, with specific terms agreed upon by the parties. However, disagreements arose over the listing price, repairs, and a closed bidding process, leading to a legal challenge.

 

Issues:

 

The primary issue in this blog revolves around the sale of the joint matrimonial home and whether the wife was obligated to accept the husband’s offer on the matrimonial home for purchase.

 

Discussion and Analysis:

 

The parties agreed to list the home at $799,000. The husband made an offer to purchase the property for $150,000.00 below the listing price, which was refused by the wife.

 

The court considers whether the wife’s rejection of the husband’s offer was a breach of her duties and whether she followed the agreed-upon process of the sale. The valuation of the property and the actions of the listing agent also play a significant role.

 

The court clarifies that either party is entitled to make an offer on the property, however, each owner is also entitled to get the fair market value for the property. As such, the purchasing spouse must still compete with other offers on the market unless agreed otherwise:

 

[15]  Counsel for Mr. Rastkar relies on the decision in Martin v Martin (1992), 1992 CanLII 7402 (ON CA), 38 R.F.L. (3d) 217 (Ont. C.A.) to argue that once a court makes an order that a jointly owned matrimonial home is to be sold, the court cannot grant either owner a right of first refusal without the consent of the other. This applies equally to a matrimonial home. Once the home is ordered to be sold, each spouse is entitled to receive a fair market value for his or her interest in it.

 

[16]  In other words, if either Mr. Rastkar or Ms. Soltani wish to purchase the matrimonial home from the other, each must compete with other interested purchasers and do so without any inside information as to the other offers made. The caselaw makes clear that the owner must participate in the bidding process and comply with all the formalities of that process as would any other third party bidder and the home should be sold to whoever makes the highest offer within that fair process: Howard v Howard, 2022 ONSC 6915 at para 50.

 

 

[33]  Mr. Soltani argues that Mr. Rastkar should not be entitled to bid on the home and seeks an order to proceed with the sale without his involvement. I do not find the law entitles her to exclude Mr. Soltani from bidding in the open market nor do I find Mr. Soltani’s conduct, while having contributed to delay, warrants his exclusion from the listing and sale process.

 

Moving forward

 

The court found a creative solution in which the home will be listed at what the judge felt to be a fair market value of $750,000.00 (based on the appraisals), and then reduced by $20,000.00 every thirty days thereafter.  Either spouse may bid on the property:

 

[35] Ms. Soltani is entitled to have the property sold at fair market value. That fair market value was deemed to be as high as $750,000 in November 2023. Going into the spring of 2024, the market will determine if the value will be lower or higher. However, rather than having the parties spend more funds obtaining another valuation or returning to the negotiation table to determine a new listing price, there will be an order that the home will be listed by April 3, 2024, at the price of $750,000 and that listing price will be reduced by a minimum $20,000, unless the parties jointly agree to a lesser amount, every 30 days until such time as the home is sold.

 

[36] Should either party wish to bid on the house, they may do so any time at the listing price. This ensures each party has a reasonable opportunity to bid on the house as any other purchaser while also ensuring that neither is obliged to accept an offer below fair market value.

 

Conclusion:

 

In conclusion, Soltani v. Rastkar raises complex issues surrounding the sale of a matrimonial home after a trial. While either party may bid on the house, both parties are still entitled to their share of the fair market value of the house. However, the fair market value obviously depends on what someone is willing to pay. The court was forced into a potentially problematic solution of listing the home at $750,000.00 only to publicly state it will be reduced by $20,000.00 per month.

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