Joint tenancy vs tenancy in common

October 27, 2018

 

Joint tenancy and tenancy in common are two main forms of co-ownership in British Columbia. One of the major differences between the two is the right of survivorship, which is applicable only to joint tenancy owners. It means that when one joint tenant dies, his or her interest in the property automatically goes to other surviving joint tenant(s); the deceased estate is ceased at the time of his or her death.

 

Joint tenancy also differs from tenancy in common by four conditions known as “four unities” necessary to create a joint tenancy. They are:

 

1) Unity of Time (the interest of each joint tenant must be registered at the same time);

 

2) Unity of Title (all joint tenants must be given their interest from the same title);

 

3) Unity of Interest (the interest of each joint tenant must be equal, of the same nature, and duration; joint tenants cannot register fractional interest in the property);

 

4) Unity of Possession (each co-owner has an equal right to occupy the whole property).

 

In contrast, tenancy in common only requires unity of possession to be created. Also, tenants in common can own a property with unequal undivided interest. If an interest is not specified on a title transfer form it is deemed to be equal between tenants in common. Tenants in common can obtain their interests in the property at different times and from different transfer documents.

 

Joint tenancy may be severed in the following ways:

 

1) By an act of one of the joint tenants as provided in an older court case Williams v Hensman (1861) “to dispose of his own interest in such manner as to sever it from the joint fund”. That an act could be a transfer of an ownership from one joint tenant to himself or herself, which will change joint tenancy to tenancy in common. Accordingly, the right of survivorship is lost.

 

2) By a mutual agreement between joint tenants. Joint tenants may agree to partition the property, but this does not automatically create a tenancy in common, unless it is created by such an agreement.

 

3) By operation of law. The court may consider joint tenancy to be severed by a course of dealing where the interest of the parties can be treated as the one that establishes tenancy in common. In other words, if the court finds an incompliance with any of the “four unities”, a joint tenancy will be severed.

 

 

 

 

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