How to Sever a Joint Tenancy in BC and What It Changes

Many British Columbians own their home with a spouse, partner, parent or friend, and assume the property will pass automatically to the other owner when one dies. That is exactly what happens in a true joint tenancy. If your circumstances change, you may want your share to go through your own estate instead.

Ending that automatic transfer is called severing the joint tenancy. This article explains what a joint tenancy needs, how one owner can sever it, what the change does to your share, and what happens if nobody severs before a death. Fees and tax effects of a self-transfer depend on your facts, so confirm those with a lawyer.

This article covers the law of British Columbia.

What a true joint tenancy needs

A true joint tenancy at law requires identical interests, with the four unities of title, time, possession and interest. When a joint tenant dies, the right of survivorship passes their interest to the surviving owner or owners.

There is an exception: if a person holds their interest as a trustee, a true joint tenancy is not established.

Joint tenancy is also not the starting point. When land is transferred to two or more people, they are tenants in common unless a contrary intention appears in the instrument. Spouses are treated as two persons for this purpose, so being married does not take a transfer outside that presumption. Check how your title is actually registered.

How one owner can sever alone

A joint tenant may transfer their interest to themselves. That self-transfer has the same effect of severing the joint tenancy as a transfer to a stranger, and it turns that share into a tenancy in common.

Registered owners may also make a direct transfer to one or more of their number, alone or jointly with another. The details of preparing and registering the documents, and any fees or tax that apply to the self-transfer, depend on your situation, so a lawyer can confirm them.

What changes after severance

Once severed, your share is held as a tenant in common. If the interests are not stated in the instrument, they are presumed to be equal, so unequal shares are possible only if the shares are stated.

The land title manual gives an example: if A conveys a quarter interest to B, A severs and is registered as to a 1/4 interest and B as to a 3/4 interest.

The practical effect is that your severed share no longer passes by survivorship. Where there is no survivorship, the deceased's interest vests in the personal representative, and the land must be registered in that person's name before further dealings are registered. To do that, the Land Title Office requires a court-certified copy of the Grant of Probate or Administration, among other documents.

Events that sever and events that do not

The judgment rule matters. If the judgment debtor dies while the joint tenancy still exists, the survivor takes free of the judgment. Your own situation with creditors can be complicated, so get advice before relying on this.

If nobody severs before a death

To move title to a surviving joint tenant, 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. The application is made on Form 17 with Transmission to Surviving Joint Tenant as the nature of interest.

• If there are more than two joint tenants, the survivors continue to hold as joint tenants after one dies.
• If the survivor dies before transmitting title, it must be registered to that survivor's personal representative.
• For simultaneous deaths, or deaths within 5 days of each other (deaths after March 30, 2014), s. 5 or s. 10 of the Wills, Estates and Succession Act applies instead of simple survivorship.

What to do next

• Get a current title search and confirm whether you hold as joint tenants or tenants in common.
• Confirm whether anyone holds as a trustee, since that affects whether it is a true joint tenancy.
• Check for a mortgage, judgments or financial trouble that could affect the timing or order of registration.
• Review your will, since a severed share passes through your estate.
• Ask a lawyer about the fees, tax treatment and lender requirements for a self-transfer before you sign anything.

Frequently asked questions