Joint Tenants or Tenants in Common: The Line on Your Title That Overrides Your Will
There is a line on your title that decides who owns your house after you die, and most people who
signed it could not tell you which one they chose.
Joint tenants or tenants in common. Two words on a transfer document, enormous consequences, and a
choice that is usually made in about four seconds at a lawyer’s office.
The difference in one sentence each
- Right of survivorship applies
- On death, the survivor becomes sole owner automatically
- The share does not form part of the estate
- Your will does not control it
- Usual choice for married couples
- No right of survivorship
- On death, the share forms part of the estate
- It passes by will, or by intestacy if there is none
- Shares can be unequal
- Usual choice for friends, siblings, blended families and investors
Where this goes wrong in real families
The problem is almost never the choice itself. It is that the choice was made without anybody
explaining the consequence.
- Second marriages. Joint tenancy means the survivor takes the whole house.
If your will leaves your half to your children from a first marriage, it does not matter. The right
of survivorship operates outside the will, and this is one of the most litigated situations in
Ontario estate law. - Adding an adult child to title. Parents do this hoping to simplify their
estate. Sometimes it works. Sometimes it exposes the house to that child’s creditors or a spouse’s
claim, creates a tax event, or produces a fight with siblings about whether the child was meant to
keep it or share it. - Friends or siblings buying together. Tenants in common with unequal shares is
usually right here, and it needs a written co-ownership agreement dealing with what happens if one
wants out.
Severance: any one owner can change it, alone
This surprises people. A joint tenancy can be severed unilaterally. One owner
acting on their own share can convert it to a tenancy in common without the other owner’s permission
or, in some circumstances, their knowledge.
Ontario recognises three routes: an owner acting on their own share, all owners agreeing, or a
course of dealing showing the owners treated their interests as separate. To be effective against
third parties, the severance needs to be registered on title.
People assume that once they separate, or once a family proceeding starts, the survivorship right falls away. It does not automatically. Until the joint tenancy is actually severed, if one spouse dies the survivor can take the entire property by survivorship, whatever the will says and however far along the separation is. Severance is a step somebody has to take. It is usually one of the first things a family lawyer does, and it is exactly the sort of thing that gets missed when people try to separate without one.
When co-owners cannot agree: the Partition Act
If two people own a property and one wants out, the other cannot simply refuse forever. A
co-owner can apply to the Superior Court of Justice under the Partition Act to have the property
partitioned or sold.
Ontario courts treat this as a strong presumptive right rather than a discretionary favour,
although a court may refuse where the application is malicious, vexatious or oppressive.
In practice the existence of that right is what settles most of these. Once both sides understand
that a court can order a sale, the negotiation becomes about price and timing rather than about
whether a sale happens.
Find your transfer or deed and read how you hold title. If you cannot find it, your real estate
lawyer can pull the parcel register. Then ask yourself one question: if I died tomorrow, does this
house go where my will says it goes? If the answer is no and you thought it was yes, that is a
conversation with a lawyer this month, not eventually.
Ownership structure interacts with estate law, family law, tax and creditor exposure, and the
right answer depends on facts specific to you. Talk to a real estate or estates lawyer before
changing how title is held. Changing title has consequences that are difficult to reverse.
Where This Comes From
Written from Ontario’s Partition Act and Land Titles Act and established Ontario law on severance by unilateral act, mutual agreement or course of dealing. General information, not legal advice.
Frequently Asked Questions
What is the difference between joint tenants and tenants in common in Ontario?
Does my will override joint tenancy?
Can one owner change joint tenancy without the other agreeing?
Does separation sever a joint tenancy automatically?
What if a co-owner refuses to sell?
Related Reading
- Selling a House After a Death in Ontario
- Divorce and the Matrimonial Home in Ontario
- Your Home Sells Tax Free, Until…
- Home Title Fraud in Ontario
If you are buying with a sibling, a friend or a partner and are not sure which structure fits, raise it with your lawyer before closing rather than after. I am happy to talk through the practical side of what each one means when somebody eventually wants out.