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”). 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. If you do wish to transfer ownership in real estate (land, house, strata) you should see a lawyer or notary. It is beyond the scope of this article to explain all the legal complexities and individual circumstances that arise in this area of law. We do not warrant its accuracy. Obviously, no one literally wants to split the baby or cut the house in half. 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.. beneficial interest means having the “real” or ‘true” ownership – for example, you may have a beneficial interest because you paid for the property; and. Older adults in BC can live with dignity safe from abuse of any kind. 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. However, that is not the only way that joint tenancy can be severed. 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. You need the agreement of the owners for this to happen. Reporton’Joint’Tenancy’’! Joint tenancy is most associated with its right of survivorship. 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. You might want to review this article about joint ownership pros and cons: Joint Tenancy: Pros and Cons. 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. Become a member, Donate or Volunteer to help prevent Elder Abuse in BC, MEDIA/VOLUNTEER/OUTREACH INQUIRIES: email@example.com, GENERAL INQUIRIES: firstname.lastname@example.org, Find resources and contacts in your area for Elder Abuse issues and concerns, The Federal Governments Online Tool to help find programs for Seniors in need, Copyright © 2020 Seniors First BC. 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. 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. Considering prior case law, the court maintained that a joint tenancy may be severed and converted into a tenancy in common in three ways. Paraprofessionals – Law Clerks / Paralegals. This person(s) may be an adult child or children, a close friend or an acquaintance. 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. Severing the Joint Tenancy. This is critical because, upon your death, this documentation may become the primary source of information used to determine how you intended the property to be transferred. The Courts have long recognized that joint tenancy can be severed through a “course of dealing” which indicates the parties’ … Each co-owner has the right to use and enjoy the property. 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. Don’t Panic Obviously, one spouse may not necessarily consent to the other spouse severing the joint tenancy. 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. 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. Unity of time means that all the interests are vested concurrently. It also means that one owner cannot sell his or her share without the consent of the other. The most a parent can do in this type of situation is to unilaterally ‘sever’ the joint tenancy. This publication may be reproduced and distributed in its entirety provided no alterations are made to the form or content. © 2020 Miller Thomson LLP. Janes submitted generally that the withdrawal of funds from a joint account does not sever a joint tenancy. If you are thinking about sharing ownership of your property, whether it be real property (like your house) or personal property (like your car or bank account), you should be aware of these general distinctions between the legal concepts of “joint tenancy” and “tenancy in common.”. Change from joint tenants to tenants in common This is called ‘severance of joint tenancy’. 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). 1. These are examples only. 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. Joint tenants are treated as a single owner for legal purposes. 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. If a joint tenant excludes another joint tenant from the property, this amounts to trespass. You can complete our online membership application. 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. However, this sort of "in-kind" division only occurs with acreages and other property susceptible to in-kind division. 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. If possible, Courts prefer to literally divide the property in equal pieces and give each joint owner a piece. And third, the joint tenants may, in the course of their dealings, intimate that their interests constituted a tenancy in common. There’s a lot of confusing terminology, and clients are often uncertain how they hold title to their assets, including their home. You may do this by conveying your joint tenancy interest to any third person. Janes held a power of attorney for her mother and, in 2010, she sold the Knox Road Property for $2.7 million. 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. Joint tenancy with rights of survivorship (JTWROS) is a type of account that is owned by at least two people. In British Columbia our Land Title Act, s 18 permits such a transfer to sever a joint tenancy; 2) By mutual agreement. if you are transferring to an adult child, make sure your intentions are properly recorded at the time of transfer. Unity of interest means that the holdings are equal in nature, extent and duration. A joint tenancy may be severed at the option of either joint tenant, or by mutual agreement. 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”. Joint tenancy gives each person on title an undivided interest in the entire property. Such unilateral actions could sever the joint interest and the right of survivorship. Fill out, securely sign, print or email your joint tenancy form instantly with SignNow. This typically occurs when all of the joint tenants enter into an agreement which expressly purports to sever the joint tenancy. Joint tenancy is a common form of ownership for family holdings and is often used for estate planning purposes. Joint Tenancy Agreement Form. 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. 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. 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. Home > Resources > Legal Research Articles > Shared Ownership of Property, By the legal staff of the BC CEAS Elder Law Clinic. Unity of Possession means that each of the co-owners has an equal right to possession of the entire property. 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. The title company will help construct a deed stating the owners are reverting “interest in the property” to themselves. Tenants in Common can own different proportions of the property, for example ¼ and ¾, and they can sell … But strangely enough, the partition process begins with the following question: Can we literally divide up the property between its owners? 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 is also important to be aware of this presumption if you discover, after the death of a loved one, that their property was “gifted” to adult children. 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. Joint tenancy is distinguished by the four unities: 1. possession, 2. interest, 3. title and 4. time. 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. 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. Severing the Joint Tenancy is a relatively straight forward task. This involves a transfer of the share of the property to himself or herself as a tenant in common. 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. In other words, if you transfer part of your ownership in your house to another person in joint tenancy, whether a family member, friend, or someone else, that person or persons have the same legal rights to that house as you do. 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. This creates a tenants in common document and will list the owners' names and the percentage of property they own. In other words, did you transfer the type of interest (beneficial or legal or both) that you intended? Miller Thomson LLP uses your contact information to send you information electronically on legal topics, seminars, and firm events that may be of interest to you. © Miller Thomson LLP 2020. 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. This can be done through gift or sale. 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. This means that each person is a 100% lifetime owner of the entire property. Upon the death of one of the tenants-in-common, their interest “passes” with their estate. You can complete our online volunteer application. 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). BECOME A MEMBER This means that if one of the owners dies, his or her share passes to the other owners. Joint!tenancy!is!one!of!the!two!forms!of!coGownershipinexistencetoday. If you have any questions about our information practices or obligations under Canada's anti-spam laws, please contact us at email@example.com. 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. As a point of reference, the alternative to joint tenancy is tenancy … In British Columbia, however, s. 18 (3) of the Property Law Act, R.S.B.C. Joint tenancy, on the other hand, is a form of shared ownership and creates an undivided … Upon termination, a tenancy in common is formed … First, a joint tenant may act unilaterally upon his or her share so as to destroy the four unities. You may be asked to share ownership of your property (house, car, bank account, etc. For real property (eg. 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. 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. 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. As a consequence of the severance of the joint tenancy, the court decided that half of the sale proceeds from the Knox Road Property flowed to the estate of Mrs. Burnett. It will require a trust deed to be prepared usually by a qualified solicitor or conveyancer and setting out that the new terms of ownership are for all the joint owners to own the property as beneficial Joint Tenants. If two or more people own property as a Tenancy in Common, it does not have to be divided equally. we ask that you become a part of our work by becoming a member or through a donation. Second, joint tenants may agree to sever by mutual agreement. Only joint tenants can enjoy right of survivorship. 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. 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 agreement “severs” a joint tenancy, and sets out how the sale proceeds of real property will be split between the owners. In this case, Dorothy Burnett owned a property (the “Knox Road Property”) jointly with her daughter, Diana Janes. 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. 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. 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