Different types of co-owned property, such as real estate, can be held as either joint tenancy or tenancy in common. Whether the ownership structure is of joint tenancy or tenancy in common signifies whether the parties are essentially treated as the same party, or as distinct co-owners.
Conceptually, in a joint tenancy, the parties are united in their possession, interests, title, time and intention. In comparison, for a tenancy in common, the only unity required between the parties is the unity of possession.
The Unities Broken-down
The unity of possession means that all co-owners have an identical right to possess and use the property. Through both joint tenancy and tenancy in common, neither party can disallow the other from using or possessing the property.
The unity of interest means that all co-owners have the same rights and obligations in respect to the property. This is present for joint tenancies, but for a tenancy in common, the parties may own unequal shares of the property.
The unity of time refers to the fact that the joint tenancy started and ended at the same time for both parties. The unity of title means that the interest in the property, for both parties, was derived from the same instrument, whether it be a will or other transfer. For a tenancy in common, in comparison, each party could obtain ownership through different owners at different times.
In addition to these four unities for joint tenancy, there is required intention to have a joint tenancy.
Right of Survivorship
The main real difference between these two types of ownership is the right of survivorship. If the owners have joint tenancy, then when one of the owners dies, the survivors assume the share of the deceased. For tenancy in common, there is no right of survivorship, and so when one of the owners dies, the deceased’s interest in the property forms part of their estate and is not automatically assigned to the co-owner.
Practically Speaking…
Traditionally, at common law, joint tenancies were presumed, however this is not the case in Alberta today. According to section 8 of the Alberta Law of Property Act, a tenancy in common ownership is presumed, subject to indicated contrary intention.
Today, between spouses, property is commonly held as joint tenants because when one spouse dies, the property will transfer to the other easily. Joint tenancy may also be held among parents and children for the same reason. However, in second marriages, couples may opt for a tenancy in common to ensure that their half interest in the property is transferred to the children instead of the spouse. It is important to be aware of whether your co-ownership is a joint tenancy or a tenancy in common because it could affect your estate plan.
Severance of Joint Tenancy
Through severance, one can convert a joint tenancy into a tenancy in common. There are multiple difference methods of severance, as outlined in Williams v. Hensman (1861) 70 E.R. 862. Firstly, there is unilateral severance, through the actions of one of the joint tenants. Secondly, there could be a mutual agreement among the parties to sever the joint tenancy interest. Or thirdly, there could be an implied mutual agreement through a course of dealings or severance by operation of the law.
If choosing the unilateral severance route today in Alberta, one cannot simply declare it to be true or sever the interest through a will. However, one can unilaterally sever the interest through conveying the property to oneself (section 12 of the Law of Property Act).
Through mutual agreement or course of dealings, the joint tenancy can also be severed; this involves analyzing the situation and determining whether the parties were intending to dissolve the joint tenancy through their actions. When the parties are moving away from thinking about their collective interest and begin thinking of their individual shares of the property, that is an indicator that they are treating their ownership as a tenancy in common.
This article is provided for general information purposes only and does not constitute legal or other professional advice. You are advised to contact a Real Estate Lawyer regarding any specific legal issues. You may reach us at 780-473-7779
