Can an Unregistered Transfer of Land Sever a Joint Tenancy?

In a decision released last week, Feinstein v. Ashford, 2005 BCSC 1379, Madam Justice Dorgan of the Supreme Court of British Columbia held that one of two joint tenant owners of a house severed the joint tenancy when he signed a transfer of his interest in the land to himself, even though the transfer was not registered before his death. In the result, the deceased's estate was entitled to a half interest in the house.

Mr. Ashford and Ms Feinstein had purchased a house together, and registered it in a joint tenancy. As joint tenants, if either died, title to the land and house would pass by right of survivorship to the surviving joint tenant.

Mr. Ashford and Ms. Feinstein went their separate ways, and listed the house for sale. On February 10, 2005, Mr. Ashford signed a transfer of a half interest in the land to himself. However, he died on February 28, 2005, before the transfer was registered in the land title office.

Madam Justice Dorgan noted that a joint tenancy can be severed in three ways: "(i) by one person acting on his or her own share; (ii) by mutual agreement; or (iii) by any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common."

In this case, the Court found that when Mr. Ashford had signed the transfer, it was effective as against himself on the date he signed it.

In reaching her decision, Madam Justice Dorgan distinguished an Ontario Court of Appeal decision Re Sammon (1979), 94 D.L.R. (3d) 594 (Ont. C.A.), in which the deceased had signed a transfer to himself to sever a joint tenancy with his wife, but instructed his solicitor to hold the transfer until he died, because he did not want a dispute with his wife. In Re Sammon, the Ontario Court of Appeal held that the joint tenancy was not severed. According to Dorgan J.:

In my view, the result was largely based on the fact that the deceased husband asked his solicitor to hold onto the documents until his death, at which point it would be too late to sever the joint tenancy as the property would already have devolved to his estranged wife. Further, in Sammon, the evidence suggested the deceased husband did not consider himself immediately and unconditionally bound by the deed. In the case at bar, there is no such evidence, and arguments made in this vein appear to be pure conjecture.

I do not know if Feinstein v. Ashford will be appealed.