Joint Tenancy vs Tenancy in Common in BC: What's the Difference?

When two or more people buy a home or land together, the way they hold title matters more than many people expect. It affects how much each person owns, what happens when one owner dies, and what one owner can do without the others.

British Columbia law recognizes two main ways of co-owning land: joint tenancy and tenancy in common. This article explains the difference in plain terms. Your own situation may turn on details of your title documents, so it is worth confirming with a lawyer.

This article covers the law of British Columbia.

The default rule: tenants in common

Under the Property Law Act, when land is transferred to two or more people, they are tenants in common unless a contrary intention appears in the instrument. In other words, a joint tenancy has to be set up deliberately. It is not the default.

If the instrument does not say what each tenant in common owns, their interests are presumed to be equal. Unequal shares are possible only if the shares are stated. As an example from the Land Title Practice Manual, if one owner conveys a quarter interest to another, the first is registered for a 1/4 interest and the other for a 3/4 interest.

Married spouses are treated as two persons when they acquire land, so a transfer to spouses does not escape the tenancy in common presumption just because they are married.

What makes a true joint tenancy

A true joint tenancy at law requires identical interests, with the four unities of title, time, possession and interest, and when one joint tenant dies, the right of survivorship passes that interest to the surviving joint tenant or tenants. Put simply, the owners must acquire the same interest, in the same document, at the same time, and each has the right to possess the whole.

The defining feature is the right of survivorship. When one joint tenant dies, that interest passes to the surviving joint tenant or tenants. One exception: if a person holds their interest as a trustee, a true joint tenancy is not established.

What happens when an owner dies

With a joint tenancy, the registrar needs either a certified copy of a grant of probate or administration, or a certificate of death issued by the appropriate public officer. A grant is not always required. The application is made on Form 17 with Transmission to Surviving Joint Tenant as the nature of interest.

With a tenancy in common, or a sole owner, there is no survivorship. The deceased's interest vests in the personal representative, and land must be registered in the personal representative's name before further dealings can be registered. That usually means a grant is needed and the estate must be dealt with under the will or the intestacy rules.

Some situations are different from the simple case:

• If there are more than two joint tenants, the survivors continue to hold as joint tenants after one dies.
• If the surviving joint tenant also dies before transmission, title must be registered to that survivor's personal representative.
• For simultaneous deaths, or where joint tenants die within 5 days of each other (deaths after March 30, 2014), s. 5 or s. 10 of the Wills, Estates and Succession Act applies instead of simple survivorship.

How a joint tenancy can be severed

Severing a joint tenancy turns it into a tenancy in common, which ends the right of survivorship for that share. A joint tenant may transfer their interest to themselves, and that has the same severing effect as a transfer to a stranger. Registered owners may also make a direct transfer to one or more of their number, alone or jointly with another.

Mortgaging your own share is also a severing event. The registrar requires severance as a condition of registering a mortgage by one joint tenant of their own interest. It is done by transferring the mortgagor's interest to themselves, registered before the mortgage. An assignment in bankruptcy is also a severing event.

A registered judgment is different. Registering a judgment against one joint tenant does not sever the joint tenancy, and if the judgment debtor dies, the survivor takes free of the judgment.

When co-owners disagree: partition or sale

Co-ownership can become difficult if owners cannot agree. Joint tenants and tenants in common may be compelled to partition or sell the land under the Partition of Property Act. If interested parties holding at least half the property request a sale, the court must order a sale unless it sees good reason to the contrary, and it may order a sale instead of partition despite another owner's objection.

Money disputes have their own tools. A co-owner who has paid more than their share may apply to the Supreme Court for relief, and the court may order the defaulting owner's interest sold. One co-owner can also bring an action of account against another.

What to do next

• Get a current copy of your title and check how the owners are listed.
• Read the transfer document to see whether it states a joint tenancy or specific shares.
• Think about how your co-ownership fits with your will and your plans for the property.
• Talk to a lawyer before transferring to yourself, mortgaging your share or changing how title is held, since each can change what happens on death.
• Get legal advice early if a co-owner dispute is heading toward a court application.

Frequently asked questions