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The Nature of a Joint Tenancy

The Nature of a Joint Tenancy

The nature of a joint tenancy includes the right of survivorship, which is it’s principal distinguishing characteristic.

In Zeligs v Janes 2016 BCCA 280 the court described the right of survivorship at paragraph 41:

The right of survivorship is, however, a revocable expectancy that manifests only upon success in the so-called ultimate gamble – survival – and then only if the joint estate is not been previously destroyed by an act of severance. When given inter vivos , a gift is survivorship rights is to what is left, if anything, when the gamble is one. Simcoff v Simcoff MBCA 80 at 64:“

In McKendry v McKendry 2017 BCCA 48 the court also considered the right of survivorship at paragraph 29:

“So long as the requirements of a binding gift are met, the owner of property may, during his or her lifetime, make an immediate gift of a joint tenancy, including the writer survivorship. This is so regardless of whether the donee of the gift is to hold it for the benefit of the donor will he or she is alive. When gifted inter vivos, the right of survivorship is a form of expectancy regarding the future. It is a right to which is left of the jointly held interest, if anything, when the donor dies. Bergen v Bergen 2013 BCCA 492 at para.37

The Four Unities

A joint tenancy is defined by the confluence of the four unities: unity of title, interest, time and possession.

The four unities were described in Zeligs v Janes 2016 BCCA 280 as follows:

  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 of the interests 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 question of whether a joint tenancy or a tenancy in common has been created is determined by the intention of the grantor.”

Beneficial Ownership Between Joint Title Holders

Not all jointly owned property is subject to a true joint tenancy.

In Pecore v Pecore 2007 SCC 17 property that is held in joint tenancy can give rise to three potential scenarios in terms of the beneficial interests of the titleholders:

a) A true joint tenancy, in which the joint tenants are each owner of the whole. Each enjoys the full benefit of property ownership of the ultimate survivor will enjoy the whole title for him or herself;

b) A resulting trust, wherein only one joint tenant has any beneficial interest in the property and the other joint tenant, usually a gratuitous transferee, holds title in trust for the other. And has no beneficial interest in the property;

c) A scenario which is sometimes referred to as the gift of the right of survivorship, were in a joint tenant is gratuitously placed on title and has no beneficial entitlement to the property during the lifetime of the donor, but if the donee survives the donor, the donee will receive the entire property by right of survivorship. In Bergen v Bergen 2013 BCCA 492 at para. 37, the court stated that a gift of the right of survivorship in a joint account as an immediate gift of the joint interest consisting of whatever balance exists in the account on the transfer his death, assuming he or she dies first”

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