- A tenant in common's share does not pass automatically to the other owners on death; it becomes part of their estate.
- Co-owners can hold equal or unequal shares, and decision-making can follow share size.
- A written co-ownership agreement should cover decisions, money, disputes and how an owner exits.
- A co-owner generally has a strong right to ask a court to order a sale under the Partition Act.
If you are about to buy with a friend, relative or partner, or you have inherited a share in a home, you may be told the title will be held as tenants in common. It is one of two common ways to hold property together in Ontario, and the choice affects what happens when someone dies or wants out.
This article explains how shares work, what rights each co-owner has, what a co-ownership agreement should cover and how a disagreement can end in a court-ordered sale. Many of the details turn on your facts, so a lawyer should review your arrangement before you sign or register anything.
Tenants in common versus joint tenants
The biggest difference is what happens on death. A tenant in common's share does not pass automatically to the other owners. It becomes part of their estate. Joint tenants' shares pass to the surviving owners.
Tenants in common may hold equal or unequal shares, and decision-making can follow share size. That makes this form of ownership common where owners put in different amounts of money or want to leave their share to their own family.
| Tenants in common | Joint tenants | |
|---|---|---|
| On an owner's death | Share becomes part of their estate | Share passes to the surviving owners |
| Size of shares | Equal or unequal | Not described in the same way; confirm with a lawyer |
| Can be severed? | Already separate shares | A joint tenancy can be converted to a tenancy in common |
What each co-owner can and cannot do
Ontario's guide says use and occupancy should be set out in the co-ownership agreement, along with decision-making and who pays for what.
Whether one tenant in common can sell or mortgage their own share without the others' consent is something that should be checked with a lawyer for your situation. Ontario's guide says an agreement can set the rules for how owners enter and exit, including how fair market value is set and whether the other owners, a third party or a sale will take a departing share.
It is also possible to change how you hold title. If one joint tenant takes unilateral action, such as registering a transfer to themselves, that share converts to a tenancy in common. A charge registered by fewer than all joint tenants does not by itself sever, and intent to sever is a question of fact for the courts.
What a co-ownership agreement should cover
Ontario's guide recommends a written agreement. Its list is a useful starting point for your own discussion.
- Decision-making among the owners.
- Use and occupancy of the home.
- Funding of the mortgage, taxes and repairs, and each owner's contributions.
- Compensation for breach or misuse of funds.
- Mediation or arbitration for disputes.
- How owners enter and exit, including how fair market value is set and who may take a departing share.
Agreeing on these points when everyone is on good terms is far easier than negotiating after a falling-out.
When owners disagree: forced sale and money between owners
Under the Partition Act, joint tenants and tenants in common may be compelled to make or suffer partition or sale of the land. A person interested in land may bring an action or application for partition or for sale, if the court considers a sale more advantageous to the parties interested.
The Court of Appeal has said a co-owner has a prima facie right to force a sale. The party resisting must show the property should not be sold, and a court may refuse only if the owner seeking sale is acting in a malicious, vexatious or oppressive fashion. Age and illness were not enough to refuse a sale in one decision. The court's discretion to refuse is described as narrow.
Money between owners is also a factor. In one case the Court of Appeal ordered a sale with net proceeds divided equally, awarded the co-owner occupation rent for the other owner's sole use, and said the owner who paid the mortgage and property tax may be entitled to reimbursement. In another, where one tenant in common paid the carrying costs, the court imposed a constructive trust giving him 65% of the property's value, because his contributions far exceeded what a tenant would pay in rent. These outcomes turn on the facts, any agreement and issues like unjust enrichment, so they are not predictions for your case.
What to do next
- Decide the share each owner will hold and how you will record contributions.
- Put a written co-ownership agreement in place before closing or before taking title as an heir.
- Keep records of who pays the mortgage, taxes, insurance and repairs.
- Plan for exit: how value is set and who gets the first chance to buy a share.
- Update your will, since a tenant in common's share goes into their estate.
- Ask a lawyer before registering any transfer or charge that could affect how title is held.
Frequently asked questions
What happens to my share if I die?
If you hold as a tenant in common, your share becomes part of your estate rather than passing automatically to the other owners. A will therefore matters.
Can shares be unequal?
Yes. Co-owners may hold equal or unequal shares, and decision-making can follow share size.
Can one co-owner force a sale?
Often, yes. The Partition Act allows an application for partition or sale, and the Court of Appeal has described a co-owner's right to force a sale as prima facie, with a narrow discretion to refuse.
Who decides if a sale order is appealed?
Under s. 7 of the Partition Act, appeals from Partition Act orders go to the Divisional Court, not the Court of Appeal. A lawyer can confirm the process for your case.
Sources
- Ontario.ca – Co-owning a home: Co-ownership arrangements — ontario.ca
- Ontario.ca – Develop a co-ownership agreement — ontario.ca
- Court of Appeal for Ontario – Economopoulos (Re), 2014 ONCA 687 — ontariocourts.ca
- Court of Appeal for Ontario – Inniss v. Blackett, 2022 ONCA 166 — ontariocourts.ca
- Court of Appeal for Ontario – Holtby v. Draper, 2017 ONCA 932 — ontariocourts.ca
- Court of Appeal for Ontario – Billimoria v. Mistry, 2022 ONCA 276 — ontariocourts.ca
- Ontario.ca – Land Registration Bulletin 96005 Joint Tenancy — ontario.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
This is a real estate question
Start a file online — flat, published fees, reviewed by a licensed lawyer before a dollar is owed.