Was Joint Tenancy Severed?

Was Joint Tenancy Severed?

A joint tenant may sever a joint tenancy with or without the consent or knowledge of the other joint tenant. Many joint owners are shocked to learn that this has in fact happened without their knowledge. They may be even more surprised to learn that their conduct also lead to a severance of their joint tenancy interest.

When a joint tenancy is severed the joint tenancy is converted into a tenancy in common, and the right of survivorship is extinguished. As a result of the severance, each affected co-owner(s) ceases to become a joint tenant, and instead as a tenant in common, owns a distinct share rather than an undivided interest in the whole.

It is long-established law that severance is typically affected in one of three ways:

1) By one person acting unilaterally upon his or her own shares, so as to destroy the four unities ( ie by transferring his or her interest to his or herself) ;

2) By mutual agreement, such as a written contract;

3) By any “ course of dealing” sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common- for example, conduct which demonstrates both tenants mutually dealt with their interests as several

The onus of proof rests on the party asserting the severance. McKee v . National Trust Co.(1975) 7 O.R (2d) 614 (CA).

The BC Court of Appeal in Mayer v Mayer Estate 2018 BCSC 2225 adopted the reasoning of the Ontario Court of Appeal in Hansen estate v Hansen 2012 ONCA 112 as to what constituted a course of dealing sufficient to establish that the joint tenancy and property was severed, with the result that the co-owners interest in the property are held by way of tenancy in common.

The Ontario court stated:

131. A proper application of the course of dealing, test for severing a joint tenancy requires the court to discern whether the parties intended to mutually treat their interest in the property as constituting a tenancy in common. It is not essential that the party requesting the severance establish that the co-owners conduct falls into a formulation found to have had the effect of severing a joint tenancy. In other cases. The court’s inquiry cannot be limited to matching fact patterns to those in prior cases.

Rather, the court must look in the corners entire course of conduct – in other words, the totality of the evidence – in order to determine if they intended that their interests are mutually treat it as constituting a tenancy in common.

This evidence may manifest itself in different ways. Each case is idiosyncratic and will turn on its own facts.

The court went on to state that the interests of all were mutually treated requires that the co-owners knew of the other’s position, and that they all treated their respective interests in the property is no longer being jointly held. Such knowledge can be inferred from communications her conduct.

The underlying rationale for a course of dealing, severing a joint tenancy is that it ensures that a writer survivorship does not operate unfairly in favor of one owner, where the co-owners have showing, through their conduct, common intention to no longer treat their respective shares in the property is an indivisible, unified whole.

For example, in the context of negotiations between spouses were in the midst of a marriage breakdown, even failed to uncompleted negotiations can lead to a severance because the negotiation of shares in separate interests represents an attitude and that shows that the notional unity of ownership under a joint tenancy has been abandoned.

After a joint tenant dies, severance is no longer possible, because death extinguishes the joint interest. For this reason a testamentary disposition ( a will) cannot sever a joint tenancy. Bergen v Bergen 2013 BCCA 492 at para. 40.

Joint Tenancy vs. Tenancy in Common

Joint Tenancy vs. Tenancy in Common

Zeligs v James 2016 BCCA 280 describes the nature of  and differences between a joint tenancy and a tenancy in common.

In my experience, the general public as a poor understanding of the difference between these similar sounding yet vastly different legal principles.

In fact joint tenancy and tenancy in common are the two most common forms of joint ownership and basic estate planning  in Canada.

Probably most married couples for example own their house in joint tenancy, although not necessarily.

Any property, both real and personal may be owned in either joint tenancy or tenancy in common.

The principal and distinguishing characteristic of a joint tenancy is the right of survivorship in that when one joint tenant dies, his or her interest in the property is extinguished and passes to the surviving joint tenant(s).

The interest of a tenant in common is very different with respect to survivorship. Unlike that of a joint tenant, a tenant in common’s interest in property remains intact upon death, and passes into his or her estate.  Fuller v Harper 2010 BCCA 421 at para.53

In a joint tenancy, the four unities of title, interest, time in possession are present and co-owners hold an equal interest in the property as a unified whole. The common law treats joint tenants as a single tenant: each holding the whole for the all, with no distinct share held by anyone.

In contrast in  a tenancy in common, one co-owner may hold a greater proportionate interest in the property than the other co-owners.  Hansen Estate v Hansen 2012 ONCA at paras 19-30.


Joint Tenancy: The Four Unities:

1) Unity of title means the title of each joint tenant arose from the same act or instrument.

2) Unity of interest means their holdings are perfectly equal in nature, extent and duration.

3) Unity of time means all the interest, vested simultaneously.

4) Unity of possession means each joint tenant has a right to present possession and enjoyment of the whole property, but no right to exclusive possession of any individual part of the whole.

Assuming all four unities are present, the legal question may still remain as to whether the joint tenancy or a tenancy in common has been created, as determined by the intention of the grantor. Felske Estate v Donszelmann 2009 ABCA 209.

If the land title registry does not reflect that the title is held in joint tenancy, then barring a clerical error at the and title office, the law presumes that the property is held as tenants in common.