How to Check if Your Ontario Property Is Held as Joint Tenants

Many Ontario homeowners are not sure how they hold title with a spouse, partner, parent, child or friend. The answer decides who ends up with the property when one owner dies, and it often matters more than anything written in a will.

This article explains the difference between the two common ways of sharing ownership, where the answer is found, and the events that can quietly change it. It is general information, and a lawyer can confirm how your specific property is held.

Why the way you hold title matters

Survivorship is the critical distinction between a joint tenancy and a tenancy in common. When a joint tenant dies, that person's interest passes to the surviving co-owners. When a tenant in common dies, the interest passes to that person's estate instead.

The right of survivorship applies only to interests held in a joint tenancy, and property that does not pass by survivorship goes to the deceased's personal representative.

Where to look for the answer

The wording of the document that put you on title is the starting point. Your deed or transfer, and the current record of ownership for the property kept in the land registry system, normally name the owners and say how they hold the property. Look for wording such as joint tenants or tenants in common, and compare the names on each document.

• Find the deed or transfer from when you bought the property or were added to title.
• Ask your lawyer or a title searcher to obtain the current record of ownership, so you see today's picture rather than the original one.
• Check whether any later documents were registered, such as a transfer between owners or a mortgage signed by only some of them.
• Confirm whether the property is registered under the Land Titles system or an older system, since the paperwork after a death differs.

Do not rely on how a lawyer, a bank or a family member described the arrangement years ago.

Events that can change how title is held

A joint tenancy can end while all the owners are still alive. This is called severance, and Ontario's Court of Appeal recognizes three ways it can happen: one owner acting on their own share, such as selling or encumbering it; a mutual agreement between the co-owners; or a course of dealing showing the owners mutually treated their interests as severed.

One common method is a transfer to yourself. A joint tenant can sever by registering a deed or transfer to themselves, and the registry then shows that person as a tenant in common with the other registered owners. A mortgage registered by fewer than all the joint tenants does not automatically sever the tenancy, because intent is a question of fact for the courts.

This means an old record that says joint tenants may not tell the whole story, and a later document may have changed things. If you suspect an owner did something to their share, get the full record reviewed.

What survivorship means after a death

If you hold as joint tenants, the property passes automatically to the surviving owner. Ontario lists jointly owned money and property among the assets that are distributed depending on how they are owned. A will cannot sever a joint tenancy by itself.

To record the survivor on title in the Land Titles system, a survivorship application is made under section 123 of the Land Titles Act, with a statement that the applicant held the property as joint tenant with the deceased, is entitled as surviving joint tenant, and the date of death. For deaths on or after March 1, 1986, the application must also include a Family Law Act statement signed by a solicitor.

The Family Law Act gives one example of a joint tenancy being overridden at death. If a spouse dies owning a family residence as a joint tenant with a third party who is not their spouse, the joint tenancy is deemed severed immediately before death.

Probate may still come up. Ontario says real property that does not pass by right of survivorship is a reason to apply for probate.

What to do next

• Gather your deed or transfer, mortgage papers and any family agreements.
• Request the current record of ownership so you can see how title is held today.
• List every registered document since you went on title and note who signed each one.
• Check whether the other owners are spouses, family members or third parties, since that affects the analysis.
• Speak with an Ontario real estate or estates lawyer before changing anything, and before relying on your reading of the record.

If the record shows you are tenants in common and you wanted survivorship, or the reverse, a lawyer can explain the options and what each would involve.

Frequently asked questions