Real Property (Ontario)
By:J. Leanne Andree, B.A., LL.B.
X. Joint Tenancy and Tenancy in Common
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X.1(a):Effect of Grants or Devises to Two or More Persons
See Canadian Abridgment: REA.I.3.a Real property — Interests in real property — Co-ownership — Creation and incidents; EST.I.6.b.v Estates and trusts — Estates — Legacies and devises — Nature of estate created — Joint tenancy or tenancy in common
Where land has been or is granted, conveyed or devised to two or more persons other than executors or trustees in fee simple or for any less estate by any letters patent, assurance or will made and executed after July 1, 1834, it will be considered that such persons took or take as tenants in common and not as joint tenants, unless sufficient intention appears on the face of such letters patent, assurance or will that such persons are to take as joint tenants. If a will does not manifest a contrary intention, a gift to a named person “and family” creates a tenancy in common. This applies notwithstanding that one of such persons is the spouse of another of them.
The intention that two or more persons to whom a conveyance is made in fee simple are to take as joint tenants and not as tenants in common “sufficiently appears” so as to bring the case within the exception in s. 13(1) of the Conveyancing and Law of Property Act if such intention clearly appears anywhere on the face of the deed; it need not appear in either the habendum or the granting clause.
X.1(b):Estates Administration Act
See Canadian Abridgment: EST.I.6.b.v Estates and trusts — Estates — Legacies and devises — Nature of estate created — Joint tenancy or tenancy in common
Where real property is vested under the Estates Administration Act in two or more persons beneficially entitled under the Act, such persons take as tenants in common in proportion to their respective rights, unless in the case of a devise they take otherwise under the deceased’s will.
X.1(c):Land Held by Trustee
See Canadian Abridgment: REA.I.3.a.i Real property — Interests in real property — Co-ownership — Creation and incidents — Joint tenancy
The Land Titles Act requires that where two or more owners are described as trustees, the property must be held to be vested in them as joint tenants unless the contrary is expressly stated.
X.1(d):Acquisition of Land by Two or More Persons by Length of Possession
See Canadian Abridgment: CIV.XXII.2.a.ii.H Civil practice and procedure — Limitation of actions — Real property — Adverse possession — Possession — By joint tenants or tenants in common
Where two or more persons acquire land by length of possession, they are to be considered to hold as tenants in common and not as joint tenants.
X.1(e):Settled Estates
See Canadian Abridgment: REA.V.2.c.iii Real property — Landlord and tenant — Relationship of landlord and tenant — Capacity of parties — Under the Settled Estates Act
Where two or more persons are entitled as tenants in common, joint tenants or coparceners, any or either of them may apply to the court to exercise the powers conferred by the Settled Estates Act.
X.1(f): Coparceners
See Canadian Abridgment: REA.I.3.b.ii Real property — Interests in real property — Co-ownership — Relations among tenants — Miscellaneous
Coparceners are not, strictly speaking, within either of the terms “joint tenants” or “tenants in common”, differing in some incidents from both.
X.1(g):Liability for Waste
See Canadian Abridgment: REA.I.3.b.ii Real property — Interests in real property — Co-ownership — Relations among tenants — Miscellaneous
Tenants in common and joint tenants are liable to their co-tenants for waste, or, in the event of a partition, the part wasted may be assigned to the tenant committing the waste, with the value of the waste to be estimated as if no such waste had been committed.
X.1(h):Purchase at Tax Sale
See Canadian Abridgment: MUN.XXII.4.d.iii Municipal law — Tax sales — Requirements — Who may purchase — Owners; MUN.XXII.7.a.i Municipal law — Tax sales — Redemption — Who may redeem — Owner
Where one of two or more joint tenants of land purchase the land at a tax sale, there being no prior agreement between them that the purchase must be for their joint benefit, and no fraud, the purchaser is entitled to hold the lands for his or her own benefit. The rule is the same where the parties are tenants in common.
Where land owned by joint tenants is sold for taxes, any one of the joint tenants may redeem, and it is not necessary that all the co-tenants join in redeeming.
X.2:Joint Tenancy
X.2(a):Characteristics of Joint Tenancy
See Canadian Abridgment: REA.I.3.a.i Real property — Interests in real property — Co-ownership — Creation and incidents — Joint tenancy
The fourfold unity is the great characteristic of an estate in joint tenancy. The joint tenancy must arise out of the same deed, will or claim; there must be unity of title. The estate must vest in the tenants simultaneously; there must be unity of time. Each tenant must take the same estate; there must be unity of interest. And each tenant takes an undivided moiety of the whole; there must be unity of possession. The presumption that joint tenants are prima facie jointly entitled to property is a rebuttable one.
A deed conveying property to spouse as joint tenant is an “assurance” under the Conveyancing and Law of Property Act. The deed creates a joint tenancy and not a tenancy by entireties, which, in addition to the four unities of possession, interest, time and title, also requires the conjugal unity of the parties.
X.2(b):Creation of Joint Tenancy
See Canadian Abridgment: REA.I.3.a.i Real property — Interests in real property — Co-ownership — Creation and incidents — Joint tenancy; EST.I.6.b.v Estates and trusts — Estates — Legacies and devises — Nature of estate created — Joint tenancy or tenancy in common
A joint tenancy may be created by disseisin as well as by deed or devise, and if two or more persons disseise another of lands or tenements to their own use, they become joint tenants thereof. Also, where two or more persons in lawful possession of property under a title which comes to an end remain in possession without any title, upon such wrongful possession they become joint tenants of the property.
X.2(c):Severance and Extinguishment of Joint Tenancy
See Canadian Abridgment: REA.I.3.d Real property — Interests in real property — Co-ownership — Termination of co-tenancy; FAM.III.10.h Family law — Division of family property — Matrimonial home — Severance of joint tenancy
Destruction of any one of the four unities of joint tenancy, namely possession, interest, title or time, will terminate the tenancy and therewith the right of survivorship. The maintenance of these unities is essential to the continued existence of this right. Not every dealing with the interest of one of the joint tenants will operate to sever or terminate the tenancy. For example, a lease for years of his or her share by one of two joint tenants in fee does not sever the tenancy; but where the joint tenants hold for a term of years only, it will do so. Where one of two joint tenants in fee grants his or her interest to a stranger for life, the joint tenancy is merely suspended; if during such life estate either of the joint tenants dies, there is no proof of survivorship and the joint estate is permanently severed; but if the life tenant dies before either of the joint tenants does, the joint estate is revived.
There is no survivorship in a joint tenancy except upon the death of one of the joint tenants. The joint tenancy may be severed by operation of law, as upon the bankruptcy of a joint tenant, whether the property held in joint tenancy is real or personal. Where a debtor conveys lands owned by the debtor and his or her spouse as joint tenants, and some years afterward makes an authorized assignment for the benefit of creditors, the assignment severs the joint tenancy and creates a tenancy in common, and the trustee is entitled to a one-half interest in the property.
The interest of one joint tenant can be sold under an execution, and the purchaser at the sheriff’s sale is entitled to partition.
If the joint tenant against whom an execution is lodged in the sheriff’s office dies before any steps are taken by the sheriff against the lands, the survivor holds free from the execution. Delivery of the writ of fi. fa. to the sheriff is not execution. This rule operates only in the case of death.
By virtue of the Execution Act, the writ binds the lands from the time it has been received for execution and recorded by the sheriff, so that if the interest of the life tenant is exigible, and the joint tenancy thereby severable, then any purchaser from the parties takes subject to the rights of the debtor’s execution creditor.
A conveyance in fee to A by B, the survivor of two joint tenants, “of his undivided half of the lot” puts an end to the joint tenancy and makes the joint tenant B, until death, a tenant in common with A, and B may by will devise the moiety he or she has not by his or her deed to A. The joint interest in real property is severable, and one of such interests may be sold under execution. A joint interest in an equity of redemption may be sold under a writ of execution. A joint tenancy held by a husband and wife is severable and the interest of one of them can be sold under execution.
Where lands are held by joint tenants and are subject to a mortgage, the filing of a writ of execution in the sheriff’s office does not bind the lands. The Execution Act sets out the rights of execution creditors in respect of lands that are not subject to mortgage, and in respect of lands where the execution debtor owns only an equity of redemption. Because an equity of redemption is a unit, whole and indivisible, and anyone having an interest is entitled to redeem the whole, the share of one joint tenant is not exigible under a writ of execution against that tenant, and the writ does not bind the lands or that tenant’s share of the equity of redemption. The mere filing of the execution with the sheriff does not create a severance of the joint tenancy. The equity of redemption of joint tenants not being exigible, the purchaser takes clear title and the rights of the execution creditors are limited to following the purchase moneys into the hands of the execution debtor.
The conduct of the parties may be sufficient to sever a joint tenancy. Thus, where one joint tenant dies before the hearing of an application for partition brought by the other joint tenant, the joint tenancy is severed by the conduct of the parties which established a course of dealing “sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common”. It would appear, however, that making an application for partition is not, by itself, sufficient to sever a joint tenancy.
Joint tenants, although seised in whole and in part, for the purposes of alienation, have separate shares and can release these shares to a co-tenant or transfer them to a stranger, effectively changing the character of the joint tenancy to that of a tenancy in common. The non-alienating joint tenant’s claim to title by survivorship is extinguished.
The fact that a spouse leaves the property does not terminate the joint tenancy. A separation, even followed by annulment of the marriage, does not affect the joint tenancy.
However, under the Real Property Limitations Act, possession of joint tenants is separate possession from the time one joint tenant takes possession of the entirety.
The unilateral act of one joint tenant in conveying to him or herself is sufficient to sever the tenancy; there is no need to resort to the cumbersome device of a deed to a third person to the use of the grantor, since the joint tenant’s conduct is sufficient to sever the tenancy even without the agreement of the other joint tenant as to the severance. A de facto beneficiary under a deed of joint tenancy has standing to challenge an inter vivos transaction that adversely affects his or her pecuniary interest in the estate.
A joint tenancy may be severed by one joint tenant entering into an option to purchase.
X.3:Tenancy in Common
X.3(a):Characteristics of Tenancy in Common
See Canadian Abridgment: REA.I.3.a.ii Real property — Interests in real property — Co-ownership — Creation and incidents — Tenancy in common
The essential unity which characterizes a tenancy in common is that of possession; such tenants occupy the position of one single owner with respect to all persons other than themselves. Their ownership, like that of all tenants who hold pro indiviso, is per my et per tout.
As tenants in common may hold under titles altogether distinct, they cannot join in a demise.
One tenant in common may acquire a title by possession as against the other where there are only two, or against all others where there are more than two; likewise, two tenants in common can acquire title by possession against the third where there are three, or against all others where there are more than three.
X.3(b):Creation of Tenancy in Common
See Canadian Abridgment: REA.I.3.a.ii Real property — Interests in real property — Co-ownership — Creation and incidents — Tenancy in common; EST.I.6.b.v Estates and trusts — Estates — Legacies and devises — Nature of estate created — Joint tenancy or tenancy in common
Where there is an issue whether a joint tenancy or a tenancy in common has been created, the court will lean toward finding a tenancy in common, and will prefer such a finding where there is a doubt. However, while the rule of law applying a presumption of a resulting trust shall be applied in questions of the ownership of property between spouses, as if they were not married, the fact that property is held in the name of spouses as joint tenants is proof, in the absence of evidence to the contrary, that the spouses are intended to own the property as joint tenants.
X.3(d):Dissolution of Tenancy in Common
See Canadian Abridgment: REA.I.3.d Real property — Interests in real property — Co-ownership — Termination of co-tenancy
Estates in common are dissolved in two ways: by uniting all the titles or interests in one tenant, by purchase or otherwise, which brings the whole to one severalty; and by partition.