Jackson Todd and Trevor Todd have over sixty years experience in resolving estate disputes, including where a joint tenant’s conduct may sever the joint tenancy.
JOINT TENANCY v TENANTS IN COMMON
Joint tenancy and tenancy in common are the two most common forms of concurrent property ownership in Canada.
In a joint tenancy, the “four unities” of title, interest, time and 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 all, with no distinct shares 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-owner(s)
The principal and distinguishing characteristic of joint tenancy is the right of survivorship. When one joint tenant dies, his or her interest in the property is extinguished and passes to the surviving joint tenant(s) automatically by operation of law.
The right of survivorship is a revocable “expectancy” that manifests only upon success in the so-called “ultimate gamble” – survival – and then only if the joint estate has not been previously destroyed by an act of severance.
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
The Four Unities Required To Create a Joint Tenancy
- Unity of title- means the title of each joint tenant arose from the same act or instrument.
- Unity of interest -means their holdings are perfectly equal in nature, extent and duration.
- Unity of time -means all the interests vested simultaneously.
- 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 question of whether a joint tenancy or a tenancy in common has been created is determined by the intention of the grantor.
SEVERANCE OF A JOINT TENANCY
A joint tenant is free to deal with his or her interest and may sever a joint tenancy, with or without the consent or knowledge of the other joint tenant(s).
After a joint tenant dies however, severance is no longer possible because death extinguishes the joint interest, thus a will cannot sever a joint tenancy: Bergen v. Bergen, 2013 BCCA 492 at para. 40;
When a joint tenancy is severed , the joint tenancy is converted into a tenancy in common and the right of survivorship is extinguished.
It is important to know that once the joint tenancy is severed it remains such and like a broken “ humpty dumpty” it can only be put together by starting over and recreating the four unities.
As a consequence of severance each co -owner then becomes entitled to a distinct share rather than an undivided interest in the whole. Bergen v Bergen 2013 BCCA 492.
Severance Is “Typically” Affected In One of Three Ways:
1) By one person acting unilaterally ( and usually deliberately) upon his or her own interest, so as to destroy the four unities ( ie by transferring his or her interest to his or herself as provided for in the Property Act and the Law and Equity Act) ;
2) By mutual agreement, such as a written marital separation 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 and separate.
The onus of proof rests on the party asserting the severance. McKee v .National Trust Co.(1975) 7 O.R (2d) 614 (CA).
There are several other modes of severance including but not restricted to bankruptcy, partition, and order made under matrimonial legislation.
The BC Court of Appeal in Bergler v Odenthal 2020 BCCA 175 confirmed that both a declaration of trust and a secret trust would have the effect of severing a joint tenancy. ( see also Public Trustee v Mee (1972) 2 WWR 424 where a bare trust declaration was held to sever a joint tenancy)
SEVERANCE BY CONDUCT
The underlying rationale for a course of dealing, severing a joint tenancy is that it ensures that a right of survivorship does not operate unfairly in favour of one owner, where the co-owners have demonstrated through their conduct a common intention to no longer treat their respective shares in the property as an indivisible unified whole.
The following are five courses of conduct between joint tenants that have resulted in a severance of their joint tenancy, sometimes without any knowledge or intention on their part to have done so.
- Acrimonious Conduct between the Joint Tenants
In Preskar Estate v Wagner 20023 BCSC 80 a BC court found that a joint tenancy with a right of survivorship had been severed into a tenancy in common by reason of the joint owners acrimonious conduct to each that was inconsistent with joint tenancy unity.
An unmarried couple who owned their property in joint tenancy had acrimonious family litigation for many years, starting in 2007 that never resolved. The joint tenancy was never severed and when Mr. Preskar died, his interest in the joint tenancy property immediately went to his partner by right of survivorship.
The estate successfully sued arguing that their acrimonious course of conduct over many years of litigation showed that their “notional” unity of ownership under a joint tenancy had been abandoned, and thus the joint tenancy had been severed many years before his death in 2020.
The decision meant that the half interest of the deceased would go to his estate rather than to the former joint tenant by right of survivorhip.
The BC court adopted the reasoning of the Ontario Court of Appeal as follows:
Hansen Estate v. Hansen, 2012 ONCA 112 dealt with spouses who separated and retained legal counsel, one party prepared a new will, and lawyers negotiated dividing their joint assets, but one spouse died before the negations were completed.
The Appeal court held that even failed or uncompleted negotiations can lead to severance because “the negotiation of shares and separate interests represents an attitude that shows that the notional unity of ownership under a joint tenancy has been abandoned”.
- Agreement to Ultimately Pay the Sale Proceeds Into Two Separate Accounts
The Tessier v Tessier 2001 SKQB 399 cautions that even the simple fact of retiring parties signing an agreement to sell their jointly owned property and pay the proceeds into separate accounts can by their conduct sever the joint tenancy into a tenancy in common.
The couple agreed to sell the property to a family member and prior to her death, the wife and husband had agreed that one-half of purchase price would be paid to each of them and the proceeds were to be maintained in separate bank accounts .
These facts were sufficient indicia of destruction of unities of interest and possession, both by agreement and course of conduct.
- Partnership of Jointly Owned Property
In Garland v Newhouse 2021 BCSC 1291 ( upheld at 2022 BCCA 276) a partnership between non-spouses of a jointly owned property ran for profit or loss was held to sever the joint tenancy when one of the partners died.
The parties had no personal relationship and had equally contributed to the purchase of the investment property, equally shared expenses associated with the property, and equally shared in profits derived. Their objective was to earn profit over time. They opened the joint bank account to manage the financial aspects of the business. The accounting records describe the arrangement as a partnership and individuals as partners.
The court found that there was in fact a partnership and that it was inconsistent with a joint tenancy with right of survivorship. Partners share profits and losses and the legal framework of a partnership is not compatible with the legal principles of a joint tenancy.
Where the property in issue is partnership property, there is a presumption that there is no right of survivorship as between partners, at least as concerns their beneficial interest in partnership assets:
Absent compelling evidence of a contrary agreement, a surviving partner holds legal title to property held in joint tenancy on trust for the surviving partner and the estate of the deceased partner: Agro Estate v. CIBC Trust Corp. (1999), 26 E.T.R. (2d) 314 at para. 44.
- Never Intended A Joint Tenancy
Lescano v Unlu 2016 BCSC 1535 – The court found that if the joint tenants ever were a couple their relationship ahd ended long ago, that at least one of the parties, if not both, did not understand the legal effect of a joint tenancy and did not want it from the outset. A hand written will prepared by one of the joint owners indicated that she wished her share of the property to go to her three children equally in the event of her death, and the survivor testifies neither of them ever did want a joint tenancy.
- Misuse of Power of Attorney
In Zeligs v Janes 2016 BCCA 280 the BC Court of Appeal upheld a trial decision finding that a joint bank account was severed when one of the joint tenants withdrew funds from the joint account using a power of attorney that benefitted only herself.
In doing so the joint tenant automatically severed the joint fund and converted it into a tenancy in common thus extinguishing the right of survivorship.
CONCLUSION
It is not exactly clear what evidence and how much of it the courts may require in order to find that a joint tenancy has been severed by conduct, but it is certainly a growing area of law and the courts have shown a willingness to expand the area.
The courts are being presented with more and more fact patterns of conduct where the co-owners have demonstrated through their conduct a common intention to no longer treat their respective shares in the property as an indivisible unified whole.
What is particularly interesting about this growth area of law is how uninformed the public and even the legal profession are about severance by conduct and the possible significant financial and emotional consequences of their actions.
More importantly the lack of knowledge of a severance by conduct can lay dormant for many years until typically contested after death, such as in the Preskar Estate where the acrimonious behavior that severed the joint tenancy many years before was not reflected on the land title deed.
It will increasingly become the norm in matrimonial and estate litigation cases to explore whether in years past there was ever conduct between the joint tenants that might have severed their joint tenancy so that one half of the property is “ up for grabs” by the estate instead of going to the surviving joint tenant.
