In effect, the law says that the person holds the property “in trust” for the property owner and that, upon the death of the property owner, the property passes according to the deceased property owner’s estate. This person(s) may be an adult child or children, a close friend or an acquaintance. All Rights Reserved. Fill out, securely sign, print or email your joint tenancy form instantly with SignNow. Advocating for Older Adults at Seniors First BC, Dealing with 3rd Parties – Elder Law Ethics, What Every Older Canadian Should Know About, SAIL – Seniors Abuse and Information Line, Possible Responses for Older Adult having difficulty managing finances, For personal property (eg. That is, you can give your share of the property to someone in your will, or if you die without a will, it will “pass” to the closest relative according to BC laws of intestacy (which means dying without a will) even if the person inheriting the share of property was not formerly one of the tenants-in-common. The decision in Zeligs v. Janes, 2016 BCCA 280 (CanLII) considered whether funds withdrawn from a joint bank account by one joint tenant and then transferred to herself for her own use would sever a joint tenancy. INTRODUCTORY’NOTE’!! Paraprofessionals – Law Clerks / Paralegals. SITUATION 2: You may think you have transferred ownership of part of your property to a relative to avoid probate, but they discover after your death that you only transferred the “legal title” and not the “beneficial interest” in the property. The law presumes that property is held as tenants in common, which means that each owner has a fixed, divided ownership interest, whether it be 50% each or some other combination. It is often prudent to enter into agreements to clearly confirm what your intentions are about the nature of the transfer. This agreement “severs” a joint tenancy, and sets out how the sale proceeds of real property will be split between the owners. This creates a tenants in common document and will list the owners' names and the percentage of property they own. You might want to review this booklet on joint ownership of bank accounts: What every older Canadian should know about: Powers of attorney (for financial matters and property) and joint bank accounts. Even with jointly held property, there is a difference in law between having the “beneficial interest” and the “legal title” to the property, in that: Therefore, just because you think you have transferred a share of your property to another person, it is important to consider the legal effect of the transfer. This involves a transfer of the share of the property to himself or herself as a tenant in common. Such unilateral actions could sever the joint interest and the right of survivorship. On this appeal, Janes argued that a joint tenant holding a joint bank account has the right to withdraw funds from the account and, when he/she does, the funds become the exclusive property of the withdrawer unless the funds are held on a resulting trust (which, on the facts of this case, the lower court found not to exist). For example, a joint tenant can transfer their interest to someone else or themselves without involving you in the transfer and the effect of it may be to sever the joint tenancy and create a tenancy-in-common between you and the other person or someone else entirely. In particular, in dealing with bank accounts held in joint names, a joint account holder should be cautious in withdrawing funds unilaterally to be used for his/her own benefit. Upon the death of one of the tenants-in-common, their interest “passes” with their estate. All rights reserved. cars, bank accounts, etc), the ownership is a joint tenancy; and. You can complete our online membership application. The most a parent can do in this type of situation is to unilaterally ‘sever’ the joint tenancy. 1996, c. 253 allows for severance by transfer of personal property to oneself and another. A recent decision of the British Columbia Court of Appeal gives a good reminder that a joint tenant may, through his or her unilateral actions, unintentionally sever a joint tenancy, thereby converting ownership into a tenancy in common and extinguishing the right of survivorship. 1. And third, the joint tenants may, in the course of their dealings, intimate that their interests constituted a tenancy in common. If a joint tenant excludes another joint tenant from the property, this amounts to trespass. 1996, c. 377 provides that a joint tenant may sever a joint tenancy by transferring property to himself or herself without requiring that the co-owner (s) be notified and s. 30 of the Law and Equity Act, R.S.B.C. Considering prior case law, the court maintained that a joint tenancy may be severed and converted into a tenancy in common in three ways. beneficial interest means having the “real” or ‘true” ownership – for example, you may have a beneficial interest because you paid for the property; and. On the other hand, if you transfer the ownership in your house as a “tenancy-in-common,” each owner holds a separate and distinct interest in the property, not necessarily in equal shares (for example, two owners might have shares of ⅓ and ⅔, or ¼ and ¾). This publication may be reproduced and distributed in its entirety provided no alterations are made to the form or content. You may be married or in a relationship, and want to know that if you separate, when the property is sold you will each get out what you have put in. This means that each person is a 100% lifetime owner of the entire property. Janes submitted generally that the withdrawal of funds from a joint account does not sever a joint tenancy. Joint tenancy, on the other hand, is a form of shared ownership and creates an undivided … Home > Resources > Legal Research Articles > Shared Ownership of Property, By the legal staff of the BC CEAS Elder Law Clinic. The right of each joint-tenant is a right by survivorship only in the event of no severance having taken place of the share which is claimed under the jus accrescendi. Co-owners of property can either be “joint tenants” or “tenants in common.” Joint tenants have identical proportions and durations of interest in a piece of property, along with identical rights of possession. You may do this by conveying your joint tenancy interest to any third person. The tenancy can also be changed either to convert from joint tenancy to tenancy in common or vice versa by way of a transfer of either one person’s interest or both interests. This approach was confirmed by the Supreme Court of Canada in the case of Pecore v. Pecore where the court made a decision that this presumption applies in the case of property transfers as between parents and their adult children. For example, if there are two owners (yourself, and, say, an adult child), each person owns ½ of the property; if there are three owners, each owns ⅓ of the property; and so on. If the portions of the interests owned are not specified on the land title certificate, it is assumed in law that the shares are equal as between the owners (for example, if 2 owners, both would have a ½ interest; if 3 owners, each would have a ⅓ interest). Severance of joint tenancy usually occurs when one or more of the joint tenants transfer their interest to a third party, or one or more joint tenants file a petition in court to partition the property. You can complete our online volunteer application. Joint tenancy is a common form of ownership for family holdings and is often used for estate planning purposes. If you own a property as a joint tenant: 1. each joint tenant has an equal, indivisible, share in the property; 2. you need the consent of the other joint tenant(s) in order to sell your share in the property; and 3. if one of you dies, that person’s share in the property automatically passes to the surviving joint tenant(s), regardless of the provisions of their will (this is known as the right of survivorship). This is an important point to understand, particularly if you are contemplating sharing the ownership of your house or other property in joint tenancy with a person from outside your family with whom you may have just recently formed an acquaintance. A joint-tenancy may be severed in three ways: in the first place, an act of any one of the persons interested operating upon his own share may create a severance as to that share. BECOME A VOLUNTEER After the gifts to the grandchildren, Janes and her sister were to share the remainder equally. SITUATION 1: You may have thought you entered into a joint tenancy, but you discover that it was never created in the first place, or it has been “severed” without your knowledge. As a point of reference, the alternative to joint tenancy is tenancy … If you transfer the ownership as a “joint tenancy,” it means that the property is owned by you and whomever you transfer ownership to in equal proportions. The net proceeds from the sale of the Knox Road Property were deposited into a joint bank account in the names of Janes and her mother, Mrs. Burnett. The main point, however, is to generally recognize the benefits and burdens of each type of co-ownership and understand that the ownership relationship may be terminated for any number of reasons. Let’s say you are the sole owner of property, such as your house, and you are considering adding another person(s) as an owner. Second, joint … Change from joint tenants to tenants in common This is called ‘severance of joint tenancy’. This means that if you indicate in your willthat you would like your share in the property to pass to someone other than the surv… The court disagreed. This is an important point to understand: even if you believe you share ownership in joint tenancy with someone, the other joint tenant(s) can break or sever the joint tenancy without your knowledge or consent. If two people own property as tenants in common and one dies, the deceased person’s interest in the propert… If you want to add someone to a joint account, you should speak to your bank or credit union. Tenants in Common can own different proportions of the property, for example ¼ and ¾, and they can sell … In practical terms, the chief distinction between joint tenancy and tenancy in common is the right of survivorship. A joint tenancy may be severed at the option of either joint tenant, or by mutual agreement. However, that is not the only way that joint tenancy can be severed. You may be asked to share ownership of your property (house, car, bank account, etc. And third, the joint tenants may, in the course of their dealings, intimate that their interests constituted a tenancy … Typically, this is effected by one of the joint tenants transferring his or her share in the property to him or herself. we ask that you become a part of our work by becoming a member or through a donation. Joint tenancy gives each person on title an undivided interest in the entire property. The most secure digital platform to get legally binding, electronically signed documents in just a few seconds. You might want to review this article about joint ownership pros and cons:  Joint Tenancy: Pros and Cons. Create a new document called a deed transfer. It may sometimes seem easier, more convenient, or simply a matter of estate planning to transfer all or part ownership of your property to another person(s), however, it is important to understand any and all legal implications before making such decisions. That same day, Janes withdrew the full amount of the proceeds to pay for another property that Janes and her husband had purchased. If two or more people own property as a Tenancy in Common, it does not have to be divided equally. If only the legal, and not the beneficial, interest is transferred, then the surviving owner likely holds the asset in trust for the estate of the deceased person.. COVID-19 Notice. There are several ways to sever a joint tenancy. make sure you clearly understand the nature of the ownership being suggested and the purpose for the suggested change in ownership; consider whether there are other ways to accomplish the same purpose,, and if the purpose is merely to give someone the ability to be able to make legal decisions about that property when you are no longer able to do so then consider entering into an Enduring Power of Attorney, because you can revoke a Powers of Attorney as long as you are still mentally capable of doing so; and. Her unilateral act severed the joint tenancy and thus extinguished the right of survivorship. If you have any questions about our information practices or obligations under Canada's anti-spam laws, please contact us at privacy@millerthomson.com. Unity of title – property transfer happens under the same legal instrument; Unity of interest – interest of each joint tenant must be identical in nature, extent, and duration; Unity of possession – each joint tenant has an undivided possession of the whole property; and. Only joint tenants can enjoy right of survivorship. Severing the Joint Tenancy. First, a joint tenant may act unilaterally upon his or her share so as to destroy the four unities. As such, the property will pass according to the parent’s estate (according to their will or, if there is no will, according to the laws of “intestacy”). Unity of possession means that each joint tenant has a right to present possession and enjoyment of the whole property but no right to exclusive possession of any part of the whole. Considering prior case law, the court maintained that a joint tenancy may be severed and converted into a tenancy in common in three ways. Don’t Panic Your intentions should be clearly documented, as discussed above. Joint tenancy is distinguished by the four unities: 1. possession, 2. interest, 3. title and 4. time. This means that if one of the owners dies, his or her share passes to the other owners. In this arrangement, tenants have an … In other words, did you transfer the type of interest (beneficial or legal or both) that you intended? If you wish to “gift” a portion of your property to your adult child(ren) outside of your will so it does not make up part of your estate, there is an important presumption that exists in law that you should be aware of. For example, if one of the joint tenants mortgages or transfers their interest (even if it is transferred to himself or herself), this action will sever the joint tenancy and, in law, you and the other owner(s) will become tenants-in-common. The County Assessor felt this triggered the reassessment provisions, the assessed value of the house went up, and the property tax increased an additional $2,683 per year. While Seniors First BC receives core funding from our sponsors we also rely on donations from individuals. In British Columbia our Land Title Act, s 18 permits such a transfer to sever a joint tenancy; 2) By mutual agreement. with another person who is offering to help you “manage your affairs”. In her will, Mrs. Burnett provided that her three grandchildren should be given $50,000 each and the remainder of her estate should be divided equally among her two daughters, Janes and Barbara Zeligs. You need the agreement of the owners for this to happen. That is: Note – these two documents are used to show what your intentions are regarding the ‘beneficial interest’ in a property or account. This case highlights that care must be taken when dealing with assets held in joint tenancy. If you do wish to transfer ownership in real estate (land, house, strata) you should see a lawyer or notary. legal title means that the holder of the title holds the property for the true owner (the one with the beneficial interest) – for example, you may wish to give someone else legal title to your property so that they can help you manage your affairs, but not the right to use the property for their own benefit. Of note, the remaining owner does not need to be notified of the change in tenancy from joint tenancy to tenancy in common as it can be done by one owner. The result is that on the death of the other owner(s), their portion of the ownership passes with their estate(s), instead of the property ownership coming back to you, as it would under a joint tenancy. This document protects the … The ‘deed of gift,’ even though it is called a ‘deed,’ does not have anything to do with legally transferring real estate or ownership in a joint account. You may be asked to share ownership of your property (house, car, bank account, etc. The main benefit of a joint tenancy is the right of survivorship which provides that when one joint tenant dies, his or her interest in the property passes automatically to the surviving joint tenant(s). The presumption is “rebuttable” in that it will be up to the adult child to provide evidence or show that their parent intended the property to transfer to the adult child, beneficial interest and all. Obviously, one spouse may not necessarily consent to the other spouse severing the joint tenancy. In Zeligs Estate v Janes , 2016 BCCA 280, an aging widow, Dorothy, transferred her home in British Columbia into joint tenancy with her daughter, Diana, after Diana and her family moved into the home with Dorothy. Joint tenancy or tenancy in common Property owned by more than one person must be owned in one of two ways: joint tenancy or tenancy in common. if you are transferring to an adult child, make sure your intentions are properly recorded at the time of transfer. Joint Tenancy With Survivorship . In order to protect the health and well-being of our employees and customers, the Land Title and Survey Authority of British Columbia (LTSA) is restricting access in all Land Title Offices to only its employees, direct access pass holders and Registry Agents until further notice. There are of course any number of factors that relate to each of the above possibilities for severing a joint tenancy which require legal analysis. Available for PC, iOS and Android. There’s a lot of confusing terminology, and clients are often uncertain how they hold title to their assets, including their home. In order to sever the right of survivorship, a tenant must only record a new deed showing that his or her interest in the title is now held in a “Tenancy-in-Common” or as “Community Property”. If possible, Courts prefer to literally divide the property in equal pieces and give each joint owner a piece. © 2020 Miller Thomson LLP. It simply helps clarify what your intention is. You may be a couple, group of friends, brother and sister, or parent and child, buying a house together to get on the property ladder. Obviously, no one literally wants to split the baby or cut the house in half. The adult children will need to point to some evidence of the deceased parent’s intention to gift the beneficial interest to them in order to uphold the transfer. Any other form of reproduction or distribution requires the prior written consent of Miller Thomson LLP which may be requested by contacting newsletters@millerthomson.com. For real property (eg. It is beyond the scope of this article to explain all the legal complexities and individual circumstances that arise in this area of law. Normally, without evidence of a true gift, the law will presume that a transfer without payment to another person was intended to be done merely to assist in the management of the person’s affairs (sometimes called a resulting constructive trust). Tenants in common, on the other hand, may have different proportions or shares of the property as well as different durations of interest. In such cases the spouse will need to sever the joint tenancy and change ownership of the home from jointly owned to ownership as tenants in common. To form a joint tenancy, certain requirements must be met. On death, each owner’s respective interest falls to his or her estate. A few months later, Mrs. Burnett died. For a joint tenancy to exist, the court affirmed that “four unities” must exist: unity of title, unity of interest, unity of time and unity of possession. Second, joint tenants may agree to sever by mutual agreement. In other words, your interest will not “pass” with your estate and, therefore, you will not be able to give the property to other children or other beneficiaries through your will. In order to terminate a joint tenancy, one of the four unities must be destroyed. Joint tenancy is most associated with its right of survivorship. The owner seeking severance must serve the opposing co-owners stating the intention to sever joint tenancy. Ten years later Ungrateful severed the joint tenancy by recording a grant deed in which he granted to himself his interest as a tenant in common. Even where a true joint tenancy with a right of survivorship exists, a unilateral action by a co-owner may sever the joint tenancy. Zeligs died one year after her mother and Zeligs’ husband, as executor of Zeligs’ estate, commenced an action against Janes claiming, among other things, that the joint tenancy on the Knox Road Property had been severed when the property was sold. Therefore, documentation of your intentions requires careful drafting and assistance from a property or estate lawyer or a notary to ensure that what you want is properly documented. SITUATION 3: You want to gift some of your property to your adult child prior to your death, or outside of anything that is in your will, but you have heard about a presumption in law that would undo the effect of the gift if you don’t record your wishes properly. We do not warrant its accuracy. Unity of title means that the title of each joint tenant arose from the same instrument. Reporton’Joint’Tenancy’’! Are they joint tenants, or tenants in common? Therefore, as a general rule, if you are being asked to share ownership of your property with another person: The above BC Centre for Elder Advocacy and Support public legal education article was written in 2009. It contains general information only and is not a substitute for getting legal advice about your particular situation. Second, joint tenants may agree to sever by mutual agreement. Also, if you die before the other joint tenant(s), your interest (ownership) in the property will, in most cases, automatically transfer (called the “right of survivorship”) to the other joint tenant(s). Under this section the law states that if a joint tenancy is proposed to be severed by the unilateral action by one joint tenant, the Registrar-General may require provision of additional information about the other joint tenants, and the person’s efforts to contact them, before registration. Each co-owner has the right to use and enjoy the property. Unity of Possession means that each of the co-owners has an equal right to possession of the entire property. if you are gifting the property to someone and want the beneficial interest to be included in the transfer, you can consider stating your intentions in a legal document (sometimes called a “Deed of Gift” for an example, click, you can also enter into legal arrangements declaring that the beneficial interest does. Joint!tenancy!is!one!of!the!two!forms!of!coGownershipinexistencetoday. Courts cannot literally split a residential property "in-kind", for the obvious reason depi… However, this sort of "in-kind" division only occurs with acreages and other property susceptible to in-kind division. You should apply for a ‘ Form A restriction ’. This is significant because you may have wanted to enter into a joint tenancy to effect a transfer of the whole title of the property to the other owner after you die, but without the proper supporting documents as evidence of your intentions, this may not, in law, have taken place. This could be done by simply sending the Notice of Severance to the other party in the post and asking that they sign and date the notice themselves and return it. Joint tenants are treated as a single owner for legal purposes. In arriving at its decision, the BC Court of Appeal provided an excellent summary of the law relating to joint tenancy and how a joint tenancy may be severed. It is important to be divided equally c. 253 allows for severance by transfer of entire... Our work by becoming a member you can complete our online membership application under... Associated with its right of survivorship documents in just a few seconds survivorship ( JTWROS ) is a joint is. 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