- A joint tenant's interest passes to the surviving owners by survivorship, while a tenant in common's share does not.
- Land in two or more names is presumed to be held as tenants in common unless the document shows on its face that they take as joint tenants.
- You can check how title is held by searching the parcel register through OnLand.
If you are buying property with someone or have inherited a share, the way title is held decides what happens when an owner dies. The two main options are joint tenancy and tenancy in common.
This article explains the differences in plain words, the exceptions that catch people out, and how to find out which one applies to your property.
The key difference at death
Property that passes by survivorship goes straight to the surviving owner and not into the estate, whether or not there is a will. A deceased joint tenant's interest goes to the surviving joint tenants and not to the will's beneficiaries.
A tenant in common's share does not pass by survivorship. It goes into that owner's estate, where the will or the rules on intestacy decide who receives it.
| Joint tenancy | Tenancy in common | |
|---|---|---|
| At an owner's death | Passes to surviving owners | Does not pass by survivorship |
| Will | Overridden for that interest | Share is dealt with through the estate |
| Last owner dies | Land goes to that person's estate trustee | Each share goes through its owner's estate |
Which one is your title?
Having two names on title does not by itself mean survivorship. Land conveyed to two or more persons after July 1, 1834 is held as tenants in common, unless the document shows on its face that they are to take as joint tenants.
Several exceptions change the starting point:
- Executors or trustees are not covered by the tenancy-in-common presumption.
- The presumption also applies where one co-owner is the other's spouse, and spouse here includes a Family Law Act spouse and two people living together in a conjugal relationship outside marriage, so they hold as joint tenants only if the deed says so.
- Two or more people who acquire land by length of possession hold as tenants in common.
To see how your own title is held, Ontario land registry records, including the parcel register, are searched through OnLand, where anyone can self-search or order certified copies. ServiceOntario cannot search or explain the records for you.
Exceptions that can change the result
If a spouse dies owning an interest in a matrimonial home as a joint tenant with a third person, such as a child, and not with the other spouse, the joint tenancy is deemed severed immediately before death. The deceased's share then goes into the estate instead of to the third person.
If all joint tenants die at the same time, or in circumstances that make it uncertain who survived, they are generally deemed to have held as tenants in common unless a contrary intention appears. Each share then passes through that owner's own estate.
A joint tenancy can also be ended while owners are alive. Statutory routes include conveyances under the Conveyancing and Law of Property Act, which can be set aside if a fiduciary relationship or other factor prevents them. Any joint tenant or tenant in common may also be compelled to make or suffer partition or sale of the land. A lawyer can confirm other ways a tenancy may be severed.
Dealing with the property after a death
For a joint tenancy, the land registrar may, on an application with the required evidence, delete the deceased owner's name from the parcel register under Land Titles Act s. 123. This is a land registry step and not a probate application. The applicant may complete Forms 42 and 43 of Regulation 690 or use statements, including the date of death. Where no death declaration was recorded, proof of death will be required.
For deaths on or after March 1, 1986, the application also needs one of three Family Law Act statements, and only a solicitor may make and sign them. A house held in true joint tenancy by a surviving owner can be dealt with without a Certificate of Appointment of Estate Trustee.
For a tenant in common, the Land Titles Act provides separately for entering the representatives of the deceased and for transmission to the executor, administrator or estate trustee.
What to do next
- Search the parcel register through OnLand to see how title is held.
- Read the deed for wording about joint tenants or tenants in common.
- Check whether the property was a matrimonial home and who the other owners are.
- Keep the death certificate and any will together.
- Ask a lawyer before registering anything, especially if a spouse, child or dispute is involved.
Frequently asked questions
Does a will override joint tenancy?
No. A deceased joint tenant's interest goes to the surviving joint tenants and not to the will's beneficiaries. A tenant in common's share does not pass by survivorship.
Are spouses automatically joint tenants?
No. The tenancy-in-common presumption applies where one co-owner is the other's spouse, so spouses hold as joint tenants only if the deed says so. That includes people living together in a conjugal relationship outside marriage.
Do I need probate for a jointly owned house?
A house held in true joint tenancy by a surviving owner can be dealt with without a Certificate of Appointment of Estate Trustee. The survivor uses a land registry survivorship application instead.
How do I find out how a property is held?
Search the parcel register through OnLand, where anyone can self-search or order certified copies. ServiceOntario cannot search or explain the records for you.
Sources
- Estates Administration Act, R.S.O. 1990, c. E.22, s. 2(1) (e-Laws) — Ontario e-Laws
- Conveyancing and Law of Property Act, R.S.O. 1990, c. C.34, s. 13(1) (e-Laws) — Ontario e-Laws
- Partition Act, R.S.O. 1990, c. P.4, ss. 2-3 (e-Laws) — Ontario e-Laws
- Family Law Act, R.S.O. 1990, c. F.3, s. 26(1) (e-Laws) — Ontario e-Laws
- Succession Law Reform Act, R.S.O. 1990, c. S.26, s. 55(2) (e-Laws) — Ontario e-Laws
- Land Titles Act, R.S.O. 1990, c. L.5, s. 123 (e-Laws) — Ontario e-Laws
- Ontario Land Registration Bulletin No. 2000-6, Estate Documents — files.ontario.ca
- Ontario.ca, Land Registration Bulletin 2000-6 Estate documents — ontario.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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