B.C. Law Institute Consultation Paper on Joint Tenancy

The British Columbia Law Institute has published a Consultation Paper on Joint Tenancy in June, 2011. The paper was prepared by the Real Property Reform Project Committee.

If two or more people own land as joint tenants, when one joint tenant dies, his or her interest ends, and the surviving owners continue to own the property. The title of the first-to-die does not pass under his or her will.

In contrast, when two or more people own land as tenants in common, when one dies, his or her interest forms part of his or her estate. An owner as a tenant in common may leave his or her interest in the land by will to a beneficiary.

To create a joint tenancy, there must be four unities which are summarized in the paper as follows:

Unity of title: The interests of the co-owners must be created by the same act or instrument, such as a transfer of land or a will.

Unity of time: The interests of the co-owners must be created at the same time.

Unity of interest: The interests of the co-owners must be of equal nature, size, and duration. For example, one cannot be a life interest and another an interest in fee simple. If there are three co-owners, one cannot have a half-interest and two others one-fourth each. Each must have a one-third interest.

Unity of possession: Each co-owner is entitled to possession of the whole of the land and none is entitled to any part of it to the exclusion of the other co-owners. (This is actually a characteristic of both joint tenants and tenants in common. For this reason, the respective interests of both kinds of co-owners are said to be “undivided.”)

One of the key recommendations set out in the paper is to allow joint tenancies to be created without all four unities: only unity of possession would be required. Accordingly, if the recommendation were implemented, two owners could acquire property with one owner having say a 65% interest and the other a 35% interest, and hold title so that on the death of one, the survivor will hold the entire interest by right of survivorship.

The terms “joint tenancy” and “tenancy and common” are perhaps not well understood by people not trained in the law. The report recommends that these terms be replaced by “co-ownership with survivorship” for joint tenancies, and “co-ownership without survivorship” for tenancies in common.

In British Columbia it is possible for one co-owner to sever a joint tenancy secretly, without the knowledge of the other co-owner or co-owners. If the joint tenancy is severed by one joint tenant, then he or she becomes a tenant in common and can leave his or her interest by will. The report contains a recommendation that to sever a joint tenancy (or co-ownership with survivorship) the severing owner must give notice to the other owner or owners.

The British Columbia Law Institute is asking for comments on these tentative recommendations before publishing a final report. You may comment by September 1, 2011, as follows:

By mail: British Columbia Law Institute
1822 East Mall
University of British Columbia
Vancouver, BC
V6T 1Z1

Attention: Gregory G. Blue, Q.C.

By fax: (604) 822-0144

By email: gblue@bcli.org