Joint Tenant Interest Set Aside For Unjust Enrichment


Joint Tenant Interest Set Aside for Unjust Enrichment Reasons

Just because a person is registered as a joint tenant in a parcel of property does not mean that the person actually has a beneficial Interest in and to the property, and joint tenancies can be set aside on such a basis.

The BC case of Borkenhagen v Kessler 2012 BCSC 467 is just such a situation. A married couple as plaintiffs made an agreement with their defendant aunt that they would purchase a condo and allow the aunt to reside as a tenant for as long as she wished or was able.

The aunt was registered on title as a joint tenant on title, along with the plaintiffs, in order to satisfy the strata corporation that she was an “owner and not renter.”

The arrangent was satisfactory for many years until the aunt questioned how much longer she had to pay, and asserted a one third interest in the joint tenancy.

The couple brought court action for a declaration that they were the sole owners of the condo, and succeeded on two grounds: One, that it was a resulting trust and the aunt could not rebut the presumption that she held the property in trust as she had not paid for it.

In addition, the parties were not domestic partners and they had no common intention that each of the parties would make a common contribution to the purchase price, and Two, that cautions families to be very careful about such “loose” arrangements as it would appear that the parties, while well intentioned, seemed to have very different notions as to what the legal situation was to be, with the aunt thinking that since she was registered on title, then all her “rent cheques” should be attributed towards the purchase price A simple requirement of the strata corporation that only ” owners” and not renters could live there undoubtedly contributed to the confusion Both parties should have had independent legal advisors I before the condo was purchased.

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