UNDERSTANDING JOINT TENANCY AND TENANCY IN COMMON

In Ontario, joint parties can purchase property as either joint tenants or as tenants in common. This is often referred to as legal tenure. When buying a property as joint owners, one of the most important decisions to make is the method of ownership, as the type of legal tenure you choose may impact your ability to pass ownership through your will. See below for more information on joint tenants and tenants in common.

JOINT TENANTS

In a joint tenancy, all the owners share in the entirety of the property, regardless of their respective contribution. Joint tenants share equally in the benefits and losses of the property. In the event that one member of a joint tenancy no longer wishes to be a part of the joint tenancy, they may sever their interest, which will change their interest in the property to a tenancy in common. If a member of a joint tenancy dies, the remaining owners would acquire the rights of the deceased through the right of survivorship. This means that the rights of the deceased owner would not pass through their will unless certain exceptions apply. For example, the Succession Law Reform Act states that in the event of simultaneous death among all joint tenants where it cannot be ascertained which member of the joint tenancy survived the others, the ownership of the property will be deemed to have been held as tenants in common, allowing the property to pass through the will.[1] The Family Law Act sets out another exception that triggers the severance of a joint tenancy upon the death of a spouse who owns the matrimonial home as joint tenants with a person other than their spouse.[2] In this instance, the deceased spouse’s interest in the joint tenancy will be deemed to have been severed immediately before their death. The ability for property to pass outside of the will make joint tenancy a popular ownership structure among spouses, since upon one spouse’s death, the surviving spouse may receive ownership of the property without incurring any probate fees.

TENANTS IN COMMON

Another method whereby joint parties can purchase property is through a tenancy in common. Tenants in common own proportionate interests respective of their contribution. In the event that a co-owner wants to sell their interest in the property, tenants in common can sell their respective interest without the consent of the other owners. Moreover, upon death, a co-owners proportionate interest in the property will pass with their estate through the terms of their will. Business partners purchasing a property for investment purposes together may wish to take title as tenants in common as they would likely wish to have the ability to pass their interest to their estate through a will in the event they die prior to the sale of the property.

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References:
1.Succession Law Reform Act, s. 55(2).
2. Family Law Act, s. 26(1).

Disclaimer: The information contained in this article is not to be construed as legal advice. The content is drafted and published only for the purpose of providing the public with general information regarding various real estate and business law topics. For legal advice, please contact us.

About the Author:

Shahriar Jahanshahi is the founder and principal lawyer at Jahanshahi Law Firm with a practice focus on representing business star-ups and investors in the province of Ontario. For further information about Shahriar Jahanshahi, click here.