Joint Tenancy With Right of Survivorship vs Tenants in Common in Ontario

When two or more people buy property together, the way they take title matters far more than most buyers expect. It decides what happens to each person's share if one of them dies, and it is hard to fix after the fact.

This article explains the difference between joint tenancy with right of survivorship and tenancy in common in Ontario, how a joint tenancy can be ended, and what a survivor typically has to do on death. It is general information, and a lawyer can confirm how it applies to your property.

The key difference: survivorship

Ontario's Court of Appeal has described survivorship as the critical distinction between the two. On a joint tenant's death the interest passes to the surviving co-owners, while on a tenant in common's death it passes to the deceased's estate.

The right of survivorship applies only to interests held in a joint tenancy. Property that does not pass by survivorship goes to the deceased's personal representative.

Why the choice matters for families

Joint tenancy is simple for a couple who want the survivor to keep the home. The property passes automatically to the surviving owner. Because the property is not part of the estate, it avoids the Estate Administration Tax, which excludes joint ownership that automatically passes to the other owners.

Tenancy in common suits people who want their own share to go to someone else, such as children from an earlier relationship or business partners. The deceased's share goes to their estate, so it is dealt with by the estate trustee.

Marital status can matter too. Ontario says a common-law spouse does not inherit under the Succession Law Reform Act on an intestacy, so how title is held can matter a lot for unmarried couples.

Ending a joint tenancy: severance

A joint tenancy can be turned into a tenancy in common. Ontario's Court of Appeal recognizes three ways: unilaterally acting on your own share, such as selling or encumbering it; a mutual agreement between the co-owners; or a course of dealing showing the interests were mutually treated as severed.

• Registering a transfer to yourself. A joint tenant can sever by executing and registering a deed or transfer to themselves, and the registrar shows that person as a tenant in common with the other owners. No land transfer tax is payable when the transferor and transferee are the same person, and the affidavit must say the deed is registered solely to give effect to the severance.
• Registering a mortgage. A charge by fewer than all the joint tenants does not automatically sever the tenancy, and intent is a question of fact for the courts. Severance does occur if the chargee enforces by power of sale or foreclosure.
• Three or more owners. Where there are three joint tenants, a conveyance by one severs only that tenant's interest, not the whole joint tenancy.

Secret intentions do not count. An intention declared behind the backs of the other co-owners will not suffice, and a declared intention not communicated to a co-owner is not enough on its own. The Court of Appeal has also said it is not clear that a mere expression of intention is sufficient.

Wills, mortgages and special cases

A common surprise is that a will cannot by itself sever a joint tenancy, because survivorship takes precedence over a will. The deceased's intention is relevant only as evidence of a course of dealing, if consistent with other evidence of mutual treatment.

If a joint tenant who charged their interest alone dies first, the survivors are entered on title subject to the charge, which is not removed unless a cessation is registered or a court orders its discharge.

Family law can also interfere. If a spouse dies owning a family residence as a joint tenant with a third party who is not their spouse, the joint tenancy is deemed severed immediately before death. Courts have also confirmed the general principle that a person who kills another should not profit from the crime, with exceptions such as a finding of not criminally responsible on account of mental disorder.

What happens on death and what to do next

For land in the Land Titles system, a survivor applies for survivorship under s. 123 of the Land Titles Act, with a statement that they held the property as joint tenant with the deceased, are entitled as surviving joint tenant, and the date of death. For deaths on or after March 1, 1986, the application must include a Family Law Act statement, signed by a solicitor. Forms have changed recently, so a lawyer should confirm the current requirements.

Probate is not always required, but it is normally needed if the deceased owned real property, and real property that does not pass by right of survivorship is a reason to apply.

• Check how title is held on each property before you buy and whenever your circumstances change.
• Talk with your co-owners about whether you all want survivorship.
• If you want to sever, ask a lawyer about the right method rather than relying on a will.
• After a death, gather the death certificate, the title documents and the date of death, then ask a lawyer what the survivorship application needs.
• Consider tax on the deceased's final return, which is a separate question.

Frequently asked questions