Can a Joint Tenant Sell or Mortgage Their Share Without the Other Owner in Ontario?
It depends on the steps taken, because some can end survivorship. One statutory route to sever a joint tenancy by deed is for an owner to convey the property to themselves in the same way they could convey it to another person. Co-owners can also convey property to one or more of themselves, but that conveyance can be set aside if a fiduciary relationship or other factor prevents it. How a mortgage or a sale to an outsider affects survivorship depends on the facts, so confirm it with a lawyer.
A married spouse faces an extra limit. A spouse may not sell or mortgage an interest in a matrimonial home unless the other spouse joins in or consents, a separation agreement releases the right, a court order authorizes it, or a valid designation of another home applies. A matrimonial home is property ordinarily occupied by the spouses as their family residence, now or at separation.
Any joint tenant or tenant in common may be compelled to make or suffer partition or sale, and any person interested in the land may apply to the court for partition or for sale if the court considers sale more advantageous.
Key takeaways
- A joint tenancy can be severed by deed using the statutory conveyance routes, though a conveyance between owners can be set aside in some cases.
- Any joint tenant or tenant in common may be compelled to make or suffer partition or sale of the land.
- A spouse may not sell or mortgage an interest in a matrimonial home unless the other spouse joins in or consents, or another listed route such as a court order applies.
- If a spouse dies owning a matrimonial home as a joint tenant with a third person such as a child, the joint tenancy is deemed severed and the share goes to the estate.