Joint Tenancy or Tenancy in Common? Owning a Home as Unmarried Partners in Ontario

If you and your partner are buying a home without being married, one of the first forms of paperwork you will face is how to hold title. The two usual choices are joint tenancy and tenancy in common. They sound similar, but they work very differently when one of you dies or when you separate.

The choice matters more for unmarried couples because many of the default protections that married spouses have do not apply to you. This article explains what each option means, what the law does and does not give common-law partners, and how an agreement can fill the gaps.

What the two ways of owning a home mean

Joint tenancy is co-ownership with a right of survivorship. Under a tenancy in common, each owner holds an undivided interest that does not end on their death, so there is no right of survivorship.

In plain terms, the right of survivorship is the main difference between the two. A joint tenancy has it, and a tenancy in common does not. What happens to a tenant in common's share after death depends on your situation, including whether there is a will, so it is worth confirming with a lawyer.

Why the choice matters more when you are not married

A common-law spouse does not inherit under the Succession Law Reform Act if there is no will, because outside Part V the word spouse has the Family Law Act meaning, which covers married spouses only. For married spouses, the Act gives the survivor the whole estate when there is no issue, and a preferential share first when there is issue. Those entitlements do not apply if the spouses were separated at the time of death. They do not reach unmarried partners.

If you hold the home as tenants in common and have no will, your partner's share may not go to you at all. Joint tenancy, by contrast, carries a right of survivorship. A will still matters for everything else you own.

What happens if you separate

Ontario does not divide property between common-law couples when they separate. Each partner keeps the property they bought, and neither has a right to share the other's increase in property value. Furniture and household items belong to the person who bought them.

The matrimonial home rules in the Family Law Act also do not help you. They apply to property ordinarily occupied by a person and their spouse, and spouse there means married spouses.

One exception: a common-law partner who contributed to property the other owns may have a right to part of it. Unless the owner agrees to pay the contribution back, the partner may have to go to court. Whether that applies to you depends on the facts, so it is worth speaking with a lawyer.

Other points to know before choosing

• A mortgage registered by only one joint owner does not automatically sever the joint tenancy in the land titles system. Whether the owners intended to sever is a question of fact for the courts.
• If one partner dies and the other claims dependant support under Part V of the Succession Law Reform Act, spouse includes an unmarried partner who cohabited for 3 years or had a child in a relationship of some permanence.
• For a dependant support claim, property held in joint tenancy and certain other assets are counted as part of the estate.
• The court may order support out of the estate if the deceased did not make adequate provision for the proper support of a dependant.

In other words, owning as joint tenants does not necessarily put the home beyond the reach of a support claim. How these rules fit together on your facts is a good question for a lawyer.

Putting your intentions in writing and what to do next

Two unmarried people who are cohabiting, or who intend to cohabit, may make a cohabitation agreement about their rights and obligations, including property and support. It is unenforceable unless it is in writing, signed by the parties and witnessed.

Ontario's guidance says each partner should speak to a different lawyer and that you should exchange financial information before signing. A court may set aside a domestic contract if a party failed to disclose significant assets or debts, or did not understand its nature or consequences. If you later marry each other, the agreement is deemed to be a marriage contract.

• Decide whether you want the survivor to keep the home automatically.
• Make or update a will for everything else you own.
• Gather your financial information and share it openly with your partner.
• Each speak with your own lawyer before signing anything.
• Sign the cohabitation agreement in front of a witness.
• Review your choices if you marry, have children or refinance.

Frequently asked questions