Severing a Joint Tenancy in Ontario Before a Co-Owner Dies

Many couples, parents and children, and friends own a home as joint tenants without thinking about what that means. If you want your share to go to your estate and not automatically to the other owner, the way title is held matters a great deal.

Severing a joint tenancy turns it into a tenancy in common. This article explains how that generally works, why timing matters, and what the position is when a co-owner has already died. It is general information, not advice on your situation.

Joint tenants and tenants in common: why it matters

Ontario's co-ownership guidance explains that when a joint tenant dies, the share passes to the surviving co-owners. A tenant in common is different: that person's share does not go to the other owners and instead becomes part of their estate.

Each co-owner is listed on title as one or the other, so the way title is registered decides whether the survivor takes the deceased's share. Checking the exact wording on title is the first step in any plan.

The three recognized ways to sever

The Court of Appeal for Ontario recognizes three ways to sever a joint tenancy. Which one applies depends on the facts, and a lawyer can tell you which fits your case.

• Unilateral action by a joint tenant on their own share, such as selling or encumbering it.
• A mutual agreement between the co-owners.
• A course of dealing showing the interests were mutually treated as a tenancy in common.

A course of dealing is the least clear-cut of the three, because it turns on how the owners actually behaved. That kind of question is often disputed after a death, which is a good reason to deal with the issue in writing while everyone is alive.

Severing by registering a transfer to yourself

An older Land Registry bulletin says a joint tenant can sever by signing and registering a transfer to themselves. The registrar then shows the transferee as a tenant in common with the other owners. That bulletin is old, so current practice should be confirmed before you rely on it.

Electronic registration recognizes a transfer where the transferor and transferee are the same, used to change tenure from joint tenants to tenants in common. It is its own registration category with its own law statements.

Before severing, think about the wider effects. Changing how you hold title can affect your relationship with the other owner, your own estate plans and possibly tax, so it is worth talking it through with a lawyer first.

Creditors, timing and what happens after death

A creditor's execution can sever a joint tenancy, but it must be acted upon before the joint tenant dies. If a writ is filed but not acted on before death, the surviving joint tenant takes the property free of the execution.

How this applies once a co-owner has died depends on your situation, so it is worth confirming with a lawyer promptly and gathering every document.

If the tenancy was never severed and the co-owner has died, the survivor generally takes the property. The next step is usually updating title, which is covered in our article on removing a deceased joint owner from title.

What to do next

• Get a current copy of the title (parcel register) and confirm how each owner is listed.
• Gather any agreements, correspondence or records showing how the owners treated the property.
• Check whether any creditors have filed writs or whether a mortgage or other charge is on title.
• Talk to a lawyer before signing or registering anything, and before telling the other owner, so you understand the effects.
• Update your estate planning documents once the ownership is settled.

If a co-owner has already died, do not assume the outcome. A lawyer can review the title and the history and tell you where you stand.

Frequently asked questions