Judgement Does Not Sever Joint Tenancy

Sever Joint Tenancy

The registration of a judgement against one owner of a jointly owned property does not sever joint tenancy.

If the only asset owned by the judgement debtor is the joint tenancy property, then registration of the judgment against the interest of the debtor will not sever the joint tenancy under the execution proceedings.

Canadian Imperial Bank of Commerce v. Muntain [1985] B.C. J. No. 3075  followed  Re Young [1968] B.C.J. No. 209, 70 D.L.R. (2d) 594 (BCCA) which stated:

28 In my view the registration of a judgment under s. 35 of our Execution Act does not sever a joint tenancy and I revert to the words of the trial Judge in the Power v. Grace case (approved by the Court of Appeal) [[1932] 1 D.L.R. at p. 892]:

The trend of the authorities is that a mere lien or charge on the land, either by a co-tenant or by operation of law, is not sufficient to sever the joint tenancy; there must be something that amounts to an alienation of title.

34 Immediately following the death of the debtor it seems to be beyond question that his interest in the joint tenancy existing prior to his death was extinguished. There still remained entered in the register of judgments an entry made under s. 35 of the Execution Act indicating the indebtedness of the deceased debtor. As at that moment the legal representative of the judgment debtor had no interest in the lands in question because of the operation of the jus accrescendi. The question then is whether the registration of the judgment, a first step in an uncompleted execution, constituted an encroachment upon the surviving joint tenant’s rights acquired under the jus accrescendi.
35 Appellant admits that if the execution procedure under ss. 33 to 59 of the Execution Act had been carried to a point where an order for sale was made, the jus accrescendi would have been extinguished. It is not necessary to make a finding on this point here.
36 It is my view that following the death of the debtor-joint tenant, the judgment creditor had no more than a “charge” or “encumbrance” against an interest which no longer existed.

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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