How to Sever a Joint Tenancy in British Columbia

You own a home in British Columbia with someone else as joint tenants, and you no longer want your share to pass automatically to them if you die. Maybe the relationship has changed, or you want your share to go to your children. You may also wonder whether you need the other owner to agree.

This article explains what a joint tenancy is, how a single owner can end the right of survivorship, what else has that effect, and what changes afterward. It is general information, and your title and circumstances matter, so a lawyer can confirm the right steps for you.

This article covers the law of British Columbia.

What a joint tenancy is and why survivorship matters

A true joint tenancy at law requires identical interests, with the four unities of title, time, possession and interest. The key feature is the right of survivorship: when a joint tenant dies, their interest passes to the surviving joint tenant or tenants.

That means a will does not control who receives a joint tenant's share of the property. Severing is how an owner ends that automatic transfer.

One exception is worth knowing: if a person holds their interest as a trustee, a true joint tenancy is not established.

Severing on your own by transferring to yourself

A joint tenant may transfer their interest to themselves. That transfer has the same effect of severing the joint tenancy as a transfer to a stranger, and it turns that share into a tenancy in common.

Whether the other owner needs to sign or be told anything depends on your title and circumstances, so it is worth confirming with a lawyer. Registered owners may also make a direct transfer to one or more of their number, alone or jointly with another. Mortgage lender consent is a separate contract matter, so check your mortgage terms.

Shares do not have to be equal only if title says so. If the interests of tenants in common are not stated, they are presumed to be equal. An example: if A conveys a quarter interest to B, A severs and is registered as to a 1/4 interest and B as to a 3/4 interest.

What else severs a joint tenancy, and what does not

For a mortgage by one joint tenant of their own interest, the registrar requires severance as a condition of registration. It is done by transferring the mortgagor's interest to themselves, registered before the mortgage.

A registered judgment is different. It does not sever the joint tenancy, and if the judgment debtor dies, the survivor takes free of the judgment.

More than two owners, and what happens to the severed share

If there are more than two joint tenants, the survivors continue to hold as joint tenants after one dies. When one owner severs, that owner's share becomes a tenancy in common. How the remaining owners then hold among themselves depends on your title and situation, so it is worth confirming with a lawyer.

After severance, there is no survivorship for the severed share. Instead, the deceased's interest vests in the personal representative, and land must be registered in the personal representative's name before further dealings are registered.

To do that, the Land Title Office requires a court-certified copy of the Grant of Probate or Grant of Administration, a court-certified disclosure statement, a Form 17 per parcel and a Property Transfer Tax Return. By contrast, survivorship needs only a death certificate or a grant, and a grant is not always required.

Why people sever, and what to do next

Common reasons include separation, blended families and estate planning. Severing can let your share be dealt with under your will, but it also means your co-owner no longer inherits it automatically. Severing does not end a spouse's possible claim under the Family Law Act, because being absent from title does not by itself remove a spouse's entitlement to family property.

• Get a recent copy of your title to confirm how you hold it.
• Check whether anyone holds as a trustee or whether there are more than two owners.
• Read your mortgage terms and consider whether your lender needs to be told.
• Update your will so it matches the new tenancy in common.
• Talk to a lawyer before filing, especially if there is a dispute or a judgment on title.

Frequently asked questions