Tenants-in-Common v. Joint Tenancy
Generally, joint tenants v tenants in common , there are two types of legal relationships between co-owners of property: they can buy property as either tenants-in-common or as joint tenants.
Co-owners can buy property as either tenants-in-common or as joint tenants.
Generally speaking, Joint tenancy invokes the right of survivorship, so that upon the death of an owner, the ownership interest of that owner passes in equal shares to the surviving owners.
Tenants-in-common, on the other hand, allows owners to have their share of the property form part of their estate, with the asset distributed on their death based on their Will.
Usually, when individuals are purchasing under a co-ownership, they do so as Tenants-in-Common since such a designation allows for flexibility for each owner to allow for the divestment of the property to be dictated by agreement. Tenants-in-Common gives owners the ability to have a clear sense of knowing what percentage of the property a particular owner controls.
With Tenants-in-common each owners’ share in a property can vary. For example, Tenant A could own 40% of a property, Tenant B could own 30%, and Tenant C could own 30%.
There are no rights of survivorship with tenants-in-common; if one of the purchasers dies, their interest in the property belongs to the estate, unless otherwise specified in a will or other instrument (such as a co-ownership agreement) that their property will be divided among the surviving owners.
Each owner is free to choose who will inherit his/her interest. The share of the owner falls into the estate of the owner and the inheritance is set by either the will of the Owner or within the co-ownership agreement.
Owners need to be careful this regard however, since the co-ownership agreement will need to work in conjunction with an owner’s will. If there are conflicting terms between a deceased owner’s will and the co-ownership agreement, substantial time and cost could be incurred by the remaining co-owners and other beneficiaries under the will to have the Court interpret the intention of the deceased owner.
‘Joint tenants’ is a type of ownership whereby on death of the owner, the owner’s interest passes automatically to the other co-owner(s) in equal parts.
When purchasing a property, joint tenants have an equal right to the property, regardless of how much each person contributed to buying the property. Joint tenants must obtain equal shares to the property with the same deed, at the same time.
Joint tenants also have rights of survivorship, which means that if one of the joint tenants dies, the surviving tenants(s) will inherit the deceased’s interest in the property regardless of what their will states. That is, if Tenant A dies, Tenant B and Tenant C will both obtain a one-half share of the property.
Under joint tenancy, the ownership percentage is not specified on the deed of the land. If a co-owner holding a property as a joint tenant wishes to sell their “interest”, there may be conflict about what that percentage interest actually is. Factors such as, contribution to the household, payment of the mortgage and other expenses would have to be evaluated to determine the exact percentage interest held by the exiting co-owner.
Aura LLP is Ontario’s leading law firm in the co-ownership of residential and commercial real estate. Contact us if you are looking for advice on how to structure your co-ownership arrangement, and purchase, sell or re-finance your property.