RESOURCES

Let us explore one of the most common forms of property ownership in Ontario real estate law: Joint Tenancy. This form of property ownership carries a significant legal feature known as the right of survivorship through which upon the death of one joint tenant, their interest in the property automatically transfers to the surviving joint tenant(s), bypassing probate and other legal formalities.

Joint tenancy is a co-ownership arrangement where two or more individuals hold equal shares in a property. The defining characteristic of joint tenancy includes 4 unities warranting an undivided and equal share of the property for each owner, reinforcing the notion of equal ownership, explained as follows:

1. Unity of Possession: Each joint tenant has an equal right to possess and use the entire property.
2. Unity of Interest: All joint tenants hold equal shares in the property.
3. Unity of Title: All joint tenants acquire their interest in the property through the same deed or document.
4. Unity of Time: The interests of all joint tenants must commence simultaneously.

The biggest advantage of joint tenancy is the right of survivorship, which is a cornerstone of this form of property ownership. The right of survivorship offers several legal and practical benefits that make joint tenancy an attractive option for property ownership. One of the most significant advantages is the avoidance of probate. When one joint tenant passes away, their property interest transfers automatically to the surviving joint tenant(s), eliminating the need for the probate process. This can save considerable time and legal fees. For instance, if a married couple owns a home as joint tenants and one spouse dies, the surviving spouse immediately inherits full ownership of the property without going through probate, making the transition smoother and less burdensome.

Additionally, the simplicity of joint tenancy cannot be overstated. The automatic transfer of property upon the death of a joint tenant simplifies the succession process, reducing administrative burdens on the surviving joint tenant(s). This is particularly beneficial in times of grief, as it allows the surviving co-owner to focus on other matters without worrying about legal complexities. For example, a parent and child who co-own a property as joint tenants can ensure that the surviving party gains full ownership without needing to navigate the complexities of the estate settlement.

Moreover, joint tenancy provides certainty. The surviving joint tenant(s) gain immediate and uncontested ownership of the property, providing financial and emotional stability during a difficult time. For instance, in the case of siblings owning a family cottage as joint tenants, the death of one sibling would result in the surviving sibling becoming the sole owner, without disputes or delays. This immediate and clear transfer of ownership helps avoid potential conflicts and ensures continuity of ownership.

Creating a joint tenancy requires a clear intention and proper documentation. The transfer must explicitly state that the property is to be held in joint tenancy, including the right of survivorship. Without such specification, the property might default to a tenancy in common, which does not carry the right of survivorship. The right of survivorship in joint tenancy provides a streamlined and efficient mechanism for transferring property ownership upon the death of a co-owner. It avoids the complexities and costs associated with probate, ensuring that the surviving joint tenant(s) receive the property directly.

For detailed guidance on joint tenancy and the right of survivorship, it’s best to consult a legal professional focused in Ontario real estate law. If you have any questions, you can reach out to Muhammad Wajahat Faizan, Associate Lawyer at Kormans LLP, at mwfaizan@kormans.ca.

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M. W. Faizan is an Associate Lawyer at Kormans LLP. You can reach M. W. Faizan here: mwfaizan@kormans.ca.

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