We often assume that property, registered in joint tenancy, will automatically pass to the surviving joint tenant(s) upon the death of another joint tenant. This is, however, not always the case. As demonstrated in the recent Pecore and Madsen cases from the Supreme Court of Canada, one possibility is that the surviving joint tenant actually holds the property in trust for the estate of the estate of the deceased.
A second option, which we will examine in this paper, is the possibility that the joint tenancy has been somehow terminated prior to the death of one co-owner.
Legal practitioners should always consider the question of whether property, apparently held in joint tenancy, indeed remained in joint tenancy at the time of death.
Subject always to the principles set out in Pecore, where a joint tenancy has not been terminated prior to a joint tenant’s death, then the property will automatically pass to the surviving joint tenant.
On the other hand, if the joint tenancy has been somehow terminated, then the deceased’s share in the property will be included in his or her estate and distributed accordingly.
The legal process of converting a joint tenancy arrangement into a tenancy in common, is referred to as “severance”. The distinction is important because of the right of survivorship which attaches to a joint tenancy but not to tenants in common.
It is possible to sever a joint tenancy either intentionally or inadvertently. Where a tenancy in common has been created prior to the death of one owner, the deceased’s property interest will not pass the other owners, but rather will form part of the deceased’s estate.
The severance of the joint tenancy can have a very significant effect on the outcome of both matrimonial and estate litigation. Recently this is especially so because real property increasingly represents the major asset owned by the Deceased.
REQUIREMENTS OF A JOINT TENANCY
Our law presumes joint owners to hold as tenants in common, rather than as joint tenants unless the title of the property specifically describes the owners as “joint tenants”.
In addition to the form of registration, there are four essential pre-conditions of ownership in joint tenancy. These are known legally as the “four unities” . In the absence of any of these four unities, the law presumes the owners to be tenants in common, and not joint tenants.
Briefly, the four unities are the following;
1) Unity of Interest
The interest of all joint tenants must be identical in duration, extent, and nature. For example , two joint owners would each have 50% , or four joint owners would each have a 25% interest. (Thus a 30/70 per cent ownership can exist only as for tenants in common.)
2) Unity of Possession
Each joint tenant must have an undivided share of the property at the same time as the other joint tenants. No joint tenant can have the exclusive right to possess the whole property. ( Possession in this context refers to the actual ownership of the property, and not actual physical occupancy.) The concept of an undivided share means that there is no actual division of any kind in the property. From a legal perspective, there is only the whole property, there is no such thing as a division of the whole;
3) Unity of Time-
The interest of all joint tenants must be created at the same time and for the same period. Each joint tenant must receive his or her interest at the same time and the interest must be of the same duration.
4) Unity of Title
Each joint tenant must have an equal title to the property, created by the same legal document. The document creating the title may be a transfer document, a will, a trust declaration, a deed of gift, or contract. What is crucial, however, is that it be the same legal document which creates each of the respective interests as joint tenants.
Should any of these four unities fail, this may cause the severance of the joint tenancy, and create a tenancy in common.
Acts Severing a Joint Tenancy
The leading English case is Williams v. Hensman ( 1861) 70 E.R. 862. Here the court held that a joint tenancy may be severed in three different ways.
1) By an act of one person acting on his or her own share; ( i.e. Mr. Smith registers a transfer from himself to himself at the land title office).
In other words, one joint tenant, without the consent of or even notice to the other tenants, may deal with his interest in such a way as to destroy one of the unities. In British Columbia our Land Title Act, s 18 permits such a transfer to sever a joint tenancy;
2) By mutual agreement
This typically occurs when all of the joint tenants enter into an agreement which expressly purports to sever the joint tenancy. Most often this occurs during a marriage breakup. It may be set out in a separation agreement or court order. Where, however, an agreement does not specifically address the severance of the joint tenancy, our courts often require that the parties establish severance by mutual course of conduct. McKee v. National Trust (1975) 56 D.L.R. (3d) 190)-;
3) By any course of dealing that intimates that the interests of all were mutually treated as constituting a tenancy in common.
Many acts can cause the severance of the joint tenancy, sometimes unwittingly. For severance by conduct, however, there must be mutuality of intention to treat the ownership as a tenancy in common. Both joint tenants must openly and mutually treat the tenancy as a tenancy in common. For example, a declaration of irreconcilability under the Family Relations Act, RSBC, will sever any joint tenancy ownerships of property held by the couple.
Most reported cases seem to involve the question of “mutual treatment” as tenants in common i.e. whether or no the parties carried out a course of conduct sufficient to enable the court to find their interests as constituting a tenancy in common.
Commonly the courts seem to focus on negotiations or actual agreements between the parties in respect of the property in question. These have been found to be evidence of an intention to treat the ownership interests as a tenancy in common.
In Schofield V. Graham (1969) 6 D.L.R. (3d) 88, a husband and wife had purchased property initially as joint tenants. Years later, when their marriage was dissolved, a dispute arose regarding the ownership of the property. The wife commenced an action for a declaration that each owned an undivided one half interest as joint tenants. That action settled prior to trial on the basis that the property would be listed for sale, and the proceeds divided equally. Prior to final sale, however, the husband died and the wife claimed full ownership of the property as a surviving joint tenant.
The wife’s claim was denied. The court held there was sufficient evidence to conclude that the parties intended to destroy their unity of possession. Therefore it ruled the joint tenancy had been severed.
This decision was followed in Perry v. Perry Estate 39 E.T.R. (2d) 115, an Alberta decision. Here a couple divorced but no court order was made with respect to the family home registered in their names as joint tenants. The home was sold, however the husband died before the sale proceeds were distributed.
Once again, the court ruled that the joint tenancy had been severed. The court found that the finalization of the divorce and the decision to sell the home indicated that the parties intended to terminate the unity of possession. They said the agreement to sever was implicit in the parties’ actions. Accordingly the wife was only entitled to one half of the proceeds of the sale, with the other falling into the husband’s estate.
Feinstein v. Ashford, 2005 BCSC 1379 is an example of the importance of careful analysis of various ownership interests. In this case one joint tenant, unbeknownst to the other joint tenant, signed a land transfer at his lawyer’s office to reregister title to their joint property as a tenancy in common. A few hours later he died.
A legal dispute thus arose as to whether this unregistered transfer was effective to sever the joint tenancy. The court held that, upon execution, the transfer was effective to sever the joint tenancy.
A leading British Columbia case is Walker v. Dubard 45 E.T.R. 209 (BCCA) This case involved a couple who owned several assets jointly. Shortly before her death due to cancer, the wife was apparently upset with her husband’s lack of sensitivity to her illness and wanted to avoid her estate passing to his relatives. Accordingly she both changed her will and transferred several assets out of joint tenancy. The husband made a claim under the Wills Variation Act and also sought declarations with respect to ownership of some of the joint assets.
One question was the effectiveness of some letters to the Deceased’s bank which had been drafted by the Deceased’s lawyer and signed by the Deceased. These letters spoke of her intention to sever the joint tenancy in respect of some investment certificates and bonds. They did not however specifically direct the bank to transfer these assets.
The appeal court upheld the trial judge’s finding that the joint tenancy had not been severed. The bank investments therefore passed to the husband by way of right of survivorship.
The court ruled that it is insufficient to sever a joint tenancy where there is merely a unilateral declaration of intent to sever, and nothing more, regardless of whether notice of that intent is given to the other joint tenant(s).
Zuk v. Zuk 2007 BCSC 300 involved the untimely death of a wife in the midst of matrimonial proceedings against her husband. At the time of death, there had not yet been any declaration of irreconcilability made under the Family Relations Act.
The wife’s daughter continued the action as her personal representative and sought reapportionment of the former matrimonial should be made in favour of the estate. The husband argued that the matrimonial home was his alone as surviving joint tenant.
The court found there had been no severance. In doing so they cited Tompkins Estate v. Tompkins (1993) 76 B.C. LR (2d) (BCCA) in which Southin, J.A. stated in Para (9) she is “not wholly in accord with the learned trial judge’s conclusion that severance requires either alienation or agreement. I prefer to say that it requires either alienation or agreement or facts which preclude one of the parties from asserting that there was no agreement.”
It is not entirely clear what the courts may require in order to find that a joint tenancy has been severed,
Nevertheless it is safe to predict that in future there will likely be court challenges to estate plans using joint tenancies, on the basis that the conduct of the parties has resulted in a severance of the joint tenancy.
For example, we recently reviewed a file where a transfer of property had been made to a father and son as joint tenants. Simultaneously they signed a trust agreement wherein the son acknowledged that he actually held his interest in trust for both himself and his sister. This in fact occurred in Public Trustee v Mee (1972) 2W.W.R. 424.The court held that when the bare trust declaration was signed, the property was transferred to the trustee, and thus the joint tenancy severed. This lack of basic understanding of the 4 unities, defeated the joint ownership arrangement from the outset.
There seems to an unfortunate lack of consideration by some legal professionals of the effects of some legal documents on the nature of ownership of the property.