Joint Tenants vs Tenants in Common

The Difference That Shows Up After Someone Dies

Joint tenants and tenants in common are how two or more people hold title to the same Ontario property. The words sit on the deed. The consequence sits at death, and at a later title transfer.

Joint tenants own together, equally, with a right of survivorship. When one dies, the survivors take the whole property. The will does not get a vote. Tenants in common each own a separate share, which can be unequal. When one dies, that share goes through their estate, to whoever the will (or intestacy) names.

If the transfer is silent, Ontario treats the owners as tenants in common. Section 13 of the Conveyancing and Law of Property Act says so. If you want joint tenancy, the transfer has to say it. This is the line to get right at closing, not after the funeral.

A real estate lawyer in Toronto puts those words on the Transfer. Get them right when you buy, not after a death.

Joint Tenants

Each joint tenant holds an identical, undivided interest in the whole property. Two owners: 50/50. Three owners: one-third each. You cannot be joint tenants at 70/30. That split is tenants in common, whether anyone used the words or not.

Four unities have to hold, or the joint tenancy is not there:

• Interest: the same duration, extent, and nature.
• Possession: each has the right to possess the whole property, not a room.
• Time: the interests vest at the same time.
• Title: they take under the same instrument.

The right of survivorship is the point. The deceased's interest never becomes an estate asset. A clause in the will leaving "my house to my children" does not move a joint-tenancy share. The survivors take. Then someone registers a survivorship application to take the deceased off title. That is a land-titles filing, not probate of the house.

Tenants in Common

Each owner holds a distinct share. 50/50, 70/30, or three people at whatever percentages the transfer records. Shares can be sold, mortgaged, or left by will without automatically handing the rest to the co-owners.

They still have an undivided right to possess the whole property. Tenants in common do not each own a floor. They own a percentage of the entire lot. "Occupy a specific portion" is the usual mix-up. Exclusive rooms are a side agreement, not the title.

On death the share is an estate asset. It is distributed under the will, or under Ontario intestacy if there is no will. Estate administration tax can apply to that share. A joint-tenancy share that passes by survivorship does not go through that process.

How Ontario Reads a Silent Transfer

For land, the default is tenancy in common unless the instrument shows a joint tenancy. Bank accounts and some other personal property often run the other way. Do not copy the bank's joint-account logic onto the house. Put "as joint tenants" on the transfer if that is what you mean, and read it on the draft before you sign.

Spouses often want joint tenancy so the survivor is not waiting on probate to deal with the home. Friends, siblings, blended families, and anyone putting in unequal money usually want tenants in common, plus a co-ownership agreement that says who pays what, who can force a sale, and what happens if one wants out. Title alone will not save a 70/30 down payment if you took as joint tenants.

Severing, and Forcing a Sale

A joint tenancy can be turned into a tenancy in common. One owner can transfer their interest to themselves or to someone else. All owners can agree in writing. A course of dealing can also do it, where the owners have treated their interests as separate shares. A will, by itself, does not sever. Leaving the house to someone else in a will while you are still a joint tenant is how people think they have planned and have not.

Either form of co-owner can ask the court to partition or sell under the Partition Act. The other owner does not have a veto forever. That is why friends buying together need the agreement before they are on title, not after one of them wants out.

Adding or removing a name later is a title transfer. Land transfer tax can still apply if a mortgage is assumed. The lawyer puts the tenancy words on the transfer at the original purchase. All-inclusive legal fees on a residential purchase start at $2,299 plus HST. Most of the signing is remote.

Frequently Asked Questions (FAQ)