Joint Tenants vs Tenants in Common in BC: What Is the Difference?

If you are buying a home with a partner, a relative or a friend, the title will say how you hold it together. The two main choices are joint tenancy and tenancy in common. They look similar, but they work very differently when one owner dies, when one owner borrows money, or when the relationship breaks down.

This article explains the difference in plain terms for British Columbia. It is general information, not advice on your own title. Because the wording on a transfer matters, it is worth having a lawyer review it before you sign.

This article covers the law of British Columbia.

The default rule: tenants in common

When land is transferred to two or more people in BC, they are tenants in common unless the transfer document shows a contrary intention. So if nobody says anything about joint tenancy, you should not assume you have it.

If the document does not state each person's share, the shares are presumed to be equal. Owners can hold unequal shares only if the shares are stated. For example, if A conveys a quarter interest to B, A is registered as to a 1/4 interest and B as to a 3/4 interest.

Married spouses are treated as two persons when acquiring land, so a transfer to spouses is not taken out of the tenancy-in-common presumption just because they are married.

What makes a true joint tenancy

A true joint tenancy requires identical interests, with the four unities of title, time, possession and interest. In plain words, the owners get their interest in the same document, at the same time, each with the right to possess the whole property, and with equal shares.

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

Side by side: the main differences

What happens when an owner dies

For a joint tenancy, the registrar needs either a certified copy of the grant of probate or administration, or a certificate of death issued by the appropriate public officer; a grant is not always required. If there are more than two joint tenants, the survivors continue to hold as joint tenants after one dies.

There are special cases. If the surviving joint tenant also dies before transmitting, title must be registered to that survivor's personal representative. For simultaneous deaths, or deaths within 5 days of each other after March 30, 2014, ss. 5 or 10 of the Wills, Estates and Succession Act apply instead of simple survivorship.

For a tenant in common, there is no survivorship. The deceased's interest vests in the personal representative, and land must be registered in that person's name before further dealings are registered. This usually requires a court-certified Grant of Probate or Administration.

Severing a joint tenancy

Severing means ending the joint tenancy so that the share becomes a tenancy in common. A joint tenant may transfer their interest to themselves, and that has the same severing effect as a transfer to a stranger.

• Mortgaging your own interest: the registrar requires severance as a condition of registering a mortgage by one joint tenant, done by transferring your interest to yourself before the mortgage is registered.
• Bankruptcy: an assignment in bankruptcy is also a severing event.
• Registered judgment: a judgment against one joint tenant does not sever the joint tenancy, and if the debtor dies, the survivor takes free of the judgment.

Because severing can change what your family receives on death, talk to a lawyer before doing it.

Disputes, partition and what to do next

Neither type of ownership guarantees you can stay put. Joint tenants and tenants in common may be compelled to partition or sell the land. If interested parties holding at least half the property request a sale, the court must order one unless it sees good reason to the contrary.

• Get a copy of your current title and check how it is held.
• Confirm whether the shares are stated and whether they match what you intended.
• Think about what you want to happen to your share if you die, and whether your will fits that.
• Ask a lawyer before changing how title is held, mortgaging your share or signing a co-ownership agreement.

Frequently asked questions