Joint Tenancy vs Tenancy in Common in Alberta: When an Owner Dies

When two or more people buy land together in Alberta, the way they hold title decides what happens to each person's share if one of them dies. Spouses, parents and children, and friends all face the same choice, and many people never realize they made one.

This article explains the two forms of co-ownership, which one applies if nothing is said, how owners can change or end a joint tenancy, and what is generally filed at Land Titles after a death. It is general information, and a lawyer can confirm how it applies to your title.

This article covers the law of Alberta.

How the two forms of co-ownership work

Alberta titles are kept under the Torrens system, created by the Land Titles Act. The government holds the original titles, documents and plans, and it is responsible for the validity and security of registered land title information.

With joint tenancy, each owner has a right of survivorship. When one owner dies, their share in the land goes to the other owners. With tenancy in common, each co-owner holds an individual share. When one dies, that share does not pass to the other owners. It passes to that person's estate.

Which form applies if the transfer is silent

To be joint tenants, the transfer document must say so. You must specify joint tenancy on the transfer, and it is then shown on title. Under the Law of Property Act, where land is transferred to two or more people (other than as executors or trustees), they take as tenants in common and not as joint tenants unless an intention to take as joint tenants sufficiently appears on the instrument.

This includes spouses. Where land is transferred to a husband and wife, they take according to the tenor of the transfer, subject to section 8. They are joint tenants only if the transfer says so.

Changing the form or severing a joint tenancy

The Law of Property Act lets co-owners convey interests between joint tenancy and tenancy in common forms. Transferring a joint tenancy to yourself as a tenant in common severs the joint tenancy once it is registered under the Land Titles Act.

That does not mean one owner can quietly sever without the others knowing. The Registrar will not register a transfer that severs a joint tenancy unless one of three things is true:

• The transfer is executed by all the joint tenants.
• The other joint tenants consent in writing.
• The other joint tenants have received written notice by personal or substitutional service.

A court order can also sever a joint tenancy. For spouses or adult interdependent partners, the Family Property Act lets the Court sever a joint tenancy, and the Law of Property Act says a court order over jointly held land severs the joint tenancy when it is granted.

What happens at death

If you are the surviving joint tenant, you use the Statutory Declaration regarding Proof of Death. You attach an original or notarized copy of a Vital Statistics, Medical Examiner's, funeral director's or cremation certificate, or a comparable document for a death outside Alberta. Only an original death certificate is returned.

On written application with the required documentation, the Registrar shall cancel the certificate of title and grant a new certificate in the name of the surviving joint tenant.

If the person who died was a tenant in common or a sole owner, the land vests in the personal representative. You file an Application for Transmission to Personal Representative with the original filed Grant of Probate or Letters of Administration from the Surrogate Court of Alberta. A notarized copy is unacceptable, and grants from other jurisdictions must be re-sealed by the Surrogate Court of Alberta.

Practical steps and married owners

To add or remove a name on title, use the Transfer of Land form. All current registered owners must sign it. The form asks for the full names of current owners, the full names and addresses of new owners, the full legal land description (not the civic address), the consideration, and the name and address of the witness to the transferors' signatures.

If you are married, the Dower Act may also matter. A married person may not dispose of the homestead unless the spouse consents in writing or the Court has dispensed with consent. However, if a married person owns land as a joint tenant or tenant in common with someone other than the spouse, the Act does not apply to that land.

• Get a current copy of your title and see how it is held.
• Decide whether survivorship or passing to your estate suits your situation.
• Review your will, since it affects only tenancy in common shares.
• Talk to a lawyer before severing, adding or removing a name, especially if there is a mortgage or a separation.

Frequently asked questions