- On a joint tenant's death the interest passes to the surviving co-owners, but a tenant in common's interest passes to their estate.
- A will cannot by itself sever a joint tenancy, because survivorship takes precedence over a will.
- A joint tenant can sever by registering a transfer to themselves, and the registrar then shows them as a tenant in common.
- Check how title is actually held before assuming what happens on death.
If you co-own a home or other property in Ontario, the way you hold title decides what happens when one owner dies. Two people can own the same house and have very different outcomes for their families.
This article explains the two main forms of co-ownership, how a joint tenancy can end during life, and how to find out which one applies to you. It is general information and not a substitute for advice about your title.
The key difference: survivorship
Ontario's Court of Appeal describes 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.
| Joint tenancy | Tenancy in common | |
|---|---|---|
| On an owner's death | Interest passes to surviving co-owners | Interest passes to the deceased's estate |
| Does the will control it? | No, survivorship takes precedence over a will | Generally part of the estate, so it is dealt with through the estate |
| Estate Administration Tax | Excluded if it automatically becomes the other owners' | Part of the estate value, taxed over $50,000 |
Can a joint tenancy be changed?
Yes. Ontario's Court of Appeal recognizes three ways to sever a joint tenancy: one owner acting unilaterally on their own share, such as selling or encumbering it; a mutual agreement between the co-owners; or a course of dealing that shows the interests of all were mutually treated as severed.
- Registering a transfer to yourself: Ontario land registration guidance says a joint tenant can sever by executing and registering a deed or transfer to themselves, and the registrar then shows that person as a tenant in common with the other registered owners.
- Land transfer tax: Ontario's guide says no land transfer tax is payable on a transfer to oneself registered to sever a joint tenancy, and the affidavit must say the deed is registered solely to give effect to the severance.
- A mortgage by fewer than all owners: registering a charge by fewer than all the joint tenants does not automatically sever the joint tenancy, and severance occurs if the chargee enforces by power of sale or foreclosure.
- Three joint tenants: a conveyance by one severs only that tenant's interest, not the whole joint tenancy.
A secret intention is not enough on the course-of-dealing method. An intention declared only behind the backs of the other co-owners will not suffice. The Court has also said it is not clear that a mere expression of intention is sufficient to achieve severance.
Wills, charges and spouses
Many people assume their will decides who gets their share of a jointly owned home. A will cannot by itself sever a joint tenancy. The testator's intention is relevant only as evidence of a course of dealing, if consistent with other evidence of mutual treatment.
A charge registered by one owner can also matter. If a joint tenant who charged their interest alone dies first, the survivors are entered on title subject to the charge, and it is not removed unless a cessation is registered or a court orders its discharge.
Marriage can change the result. Under s. 26(1) of the Family Law Act, 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, according to a land registry bulletin. If you share a home with a friend or relative and you are married to someone else, speak with a lawyer about what that means.
How to check which one is on title
Do not rely on memory or on what you were told at closing. The best evidence is the registered title and the documents on it. Usually a lawyer or a title search will show whether the owners hold as joint tenants or as tenants in common, and whether a transfer to oneself or a charge has been registered.
If a survivor later applies to register their ownership, the Land Titles application includes a statement that the applicant held as joint tenant with the deceased and is entitled as surviving joint tenant. That statement is only accurate if the joint tenancy was still in place at death.
What to do next
- Get a current copy of the title for each property you co-own.
- Confirm whether the wording shows a joint tenancy or a tenancy in common.
- Check for any registered transfers to oneself or charges by one owner.
- Do not assume a will changes how a jointly held share passes.
- Talk with an Ontario lawyer before severing, because it changes what your co-owner and your family receive.
Frequently asked questions
What happens to a joint tenant's share when they die?
It passes automatically to the surviving co-owners. Ontario says the property goes to the surviving owner when you die if you own as a joint tenant.
What happens to a tenant in common's share?
It passes to the deceased's estate. It is then handled by the personal representative.
Can I leave my joint share to someone else in my will?
Not by the will alone. A will cannot by itself sever a joint tenancy, and survivorship takes precedence over a will. Severing during your lifetime by one of the recognized methods is a different question.
Does it cost land transfer tax to sever a joint tenancy?
Ontario's guide says no land transfer tax is payable on a transfer to oneself registered to sever a joint tenancy, where the transferor and transferee are the same person. A registration fee still applies to registering the document.
Sources
- Ontario.ca – Estate planning and wills — ontario.ca
- Court of Appeal for Ontario – Hansen Estate v. Hansen, 2012 ONCA 112 — ontariocourts.ca
- Court of Appeal for Ontario – McTavish v. Reed, 2021 ONCA 885 — ontariocourts.ca
- Court of Appeal for Ontario – Jansen v. Niels Estate, 2017 ONCA 312 — ontariocourts.ca
- Ontario.ca – Land Registration Bulletin 76017 — ontario.ca
- Ontario.ca – Land Registration Bulletin 96005 Joint Tenancy — ontario.ca
- Ontario.ca – Guide for Real Estate Practitioners: Land Transfer Tax — 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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