Tuesday, January 01, 2013

Oord v. Oord

In British Columbia, when real estate or other assets are held in a joint tenancy by two or more people, when one dies, his or her interest is extinguished and the surviving joint owner or owners receive the deceased’s interest by right of survivorship. It is more common for two people to own property in a joint tenancy, for example two spouses, than for there to be three or four joint owners, but the principle applies whatever the number. If four own property as joint tenants, and one dies, then the remaining three will each have a one-third interest in the property.

Careful thought should be given to the implications of several people owning property as joint tenants. Too often little thought is given to what can go wrong when the decision is made to hold property in a joint tenancy among family.

Wiebe and Tina Oord purchased bare land with their son, William Oord, and his wife Jacqueline Oord in 2003 in Rosedale, British Columbia. The title went into all four names as joint tenants. Wiebe and Tina Oord contributed the whole of the purchase price of $98,000 for the land. All four then took out a mortgage, originally in an amount just shy of $236,000 to construct a house on the land. When the house was completed, all four as well as William and Jacqueline Oord’s two children moved into the house. Wiebe, Tina, William and Jacqueline Oord all contributed to the mortgage as well as other household expenses and improvements.

Wiebe Oord died on February 7, 2010. In November, 2010, William and Jacqueline Oord separated, and Jacqueline and their two children moved out of the house.

Tina Oord applied to the Supreme Court of British Columbia, in Oord v. Oord, 2012 BCSC 1857, seeking an order that she be entitled to the first $98,000 in the equity in the property, reflecting the initial purchase price she and her husband paid, as well as half of the rest of the equity. She wanted the opportunity to buy out her son and daughter in law.

The property was worth in the neighbourhood of $450,000 to $480,000. The mortgage was just under $208,000, which reflected some additional funds taken out after the house was built for William and Jacqueline Oord to pay off some debts. All parties agreed that William and Jacqueline Oord were responsible for repaying the additional funds they borrowed. 

Jacqueline Oord maintained that she was entitled to one-third of the equity, and sought an order that the property be sold.

The first question was whether William and Jacqueline Oord held their interests in the property on a resulting trust for Tina Oord. When one person pays the entire purchase price of the property and puts it in the names of others, there is a presumption that the others hold their interest in trust for the person who paid the purchase price. In this case, because the original purchase price was paid by Wiebe and Tina Oord, the presumption applies.

But the presumption of resulting trust is just a presumption, which may be rebutted if it is shown that the person who paid the purchase price intended to make a gift.

Mr. Justice Joyce, who heard the case, considered the purchase in the context of the family relationships. Although there was no clear arrangement, the family was very close, and Tina Oord’s own evidence is that when they decided to buy the land, she considered it to be of benefit to all four of them. Mr. Justice Joyce found that Tina Oord and Wiebe Oord did intend to make a gift of a half interest in the land to their son and daughter-in-law.

The next question was whether Tina Oord was entitled to a half-interest in the property or a one-third interest. After her husband’s death Tina Oord paid half of the mortgage and property taxes.

Mr. Justice Joyce held that each of the three surviving co-owners was entitled to a one-third interest, essentially because that is how joint tenancies work. He wrote:

[50]         Apart from the issue of whether Bill and Jackie hold their interests upon a resulting trust in favour of her on account of the initial payment, as to which I have found against Tina, she further suggests that the beneficial interest in the Property should be divided one-half in her favour and one-half, collectively, in favour of Bill and Jackie, even though title is currently registered in the three parties’ names as tenants in common. In my view, that position cannot be sustained. Probably one of the most important characteristics of joint tenancy is the right of survivorship. When a joint tenant dies his or her interest is extinguished, increasing the holding of the surviving joint tenants. When Wiebe died, his interest was extinguished and those of the surviving joint tenants, including Tina, were increased, by operation of law. 
 [51]         Tina suggests that Wiebe’s interest was transferred gratuitously to Bill and Jackie with his death and that the principle of resulting trust can be invoked to say that Bill and Jackie hold their increased interest in trust. In my view, there are at least two problems with this proposition. Firstly, the increase in interest of Bill and Jackie (and Tina) did not result from a transfer from Wiebe, in the true sense. It resulted by operation of law in which Wiebe’s interest was extinguished. Secondly, in a resulting trust, the transferee holds in trust for the transferor. Here there is no transferor. 
 [52]         Tina suggests, in the alternative, that Bill and Wiebe were unjustly enriched not only by the benefit received when Wiebe and Tina paid the initial purchase price, but also when they received Wiebe’s interest upon his death. As for the initial payment of the purchase price, I have already held that to be a gift, so there can be no unjust enrichment from a perfected gift, which constitutes a juristic reason for the enrichment. As for the transmission of Wiebe’s interest on death, there can be no unjust enrichment by any of the three surviving joint tenants because the principle of survivorship provides a juristic reason for the increase in their interests. 
 [53]         I conclude therefore that, subject to the agreement regarding the increase in the mortgage in 2006, each of the remaining survivors is entitled to an equal one-third interest in the Property unless they can establish unjust enrichment on some other basis. I am satisfied that up until the death of Wiebe, all of the co-owners contributed equally to the arrangement and I can see no basis for a claim for unjust enrichment prior to that time. 
 [54]         However, after Wiebe died, Tina paid one-half of the mortgage payments and other expenses associated with the Property, when she was only obliged to pay one-third. Bill and Jackie collectively were responsible for two-thirds of the expenses. To this extent, Bill and Jackie were unjustly enriched at the expense of Tina and she is entitled to receive from Bill and Jackie the difference between one-half and one-third of the expenses. I assume that counsel will be able to agree on the precise figure. If they cannot, they may apply for further decision on that point.

He ordered that the property be sold.

Although I can’t fault the reasoning in this case, I can’t help but thinking that when they bought the property had the Oords had put their minds to the possibility that Wiebe would pass away, and then William and Jacqueline separate, they would not have contemplated that Tina Oord would end up with only a one-third interest in the property. Ideally, the Oords would have entered into a co-ownership agreement setting out their respective rights and obligations in case of a separation or death. Short of that, it might have made sense for Tina and Wiebe Oord to have held a half interest together as joint tenants, and William and Jacqueline to own the other half interest as joint tenants, but with the two half interests held as tenant’s in common. Then if Wiebe or Tina died, the survivor would still have a half interest, which he or she could leave by will.

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