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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.

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