Joint Tenants or Tenants in Common? Choosing How to Hold Title in BC

When you buy a home or investment property with a partner, relative or friend, your lawyer will ask how you want to hold title. It can sound like a box to tick on the way to completion day, but the answer decides who ends up with your share if you die.

This guide explains the difference between joint tenants and tenants in common in British Columbia, what BC law assumes if the documents are silent, how each option interacts with wills, separation and probate, and the questions to answer before you sign.

Two ways to own property together

In BC, co-owners usually hold title in one of two ways.

• Joint tenants. Each owner holds the whole property together with the others, with no separate shares. When one joint tenant dies, their interest ends and the surviving owner or owners continue to own the whole property. This is the right of survivorship.
• Tenants in common. Each owner holds a distinct share, which can be equal or unequal, such as 50/50 or 70/30. When a tenant in common dies, their share does not pass to the other owners automatically. It forms part of their estate and passes under their will, or under the intestacy rules if there is no will.

Either way, all owners have the right to use and occupy the whole property, and a co-owner generally cannot sell the entire property without the others.

What BC law assumes if you say nothing

Under section 11 of the Property Law Act, when land is transferred to two or more people (other than personal representatives or trustees), they are tenants in common unless a contrary intention appears in the instrument. If the shares are not stated, they are presumed to be equal.

In other words, joint tenancy has to be chosen. When it is, section 177 of the Land Title Act requires the registrar to enter the words "joint tenants" after the owners' names on the title. Check your title search: if those words are missing, you may not hold title the way you think.

What happens when an owner dies

Joint tenants

The surviving joint tenant does not usually need probate to deal with the property. Under section 269 of the Land Title Act, the land title office can register the transfer to the survivor on filing either a death certificate or a grant of probate or administration. Because the deceased owner's interest passes to the survivor outside the estate, it is not distributed under the will. Our article on transferring title after a joint tenant dies walks through the steps.

Section 10 of the Wills, Estates and Succession Act adds a five-day rule. If two joint tenants die and it cannot be established that one survived the other by five days, one half passes as if the first owner had survived and the other half as if the second owner had survived, which usually splits the property between the two estates. Section 5 deals similarly with deaths at the same time.

Tenants in common

A tenant in common's share goes into their estate. Your executor will usually need a grant of probate to deal with it, which adds time and cost; our article on reducing probate fees explains how fees and planning interact. Going through the estate can still be exactly what you want, for example if you want your share to go to your children rather than to a co-owner.

Which choice fits which buyers

• Spouses buying a family home. Many couples choose joint tenancy so the home passes to the survivor without probate. Blended families often prefer tenancy in common so each spouse's share can go to their own children.
• Family members or friends. Tenancy in common is common where people contribute different amounts or want their share to pass to their own families. Unequal shares can reflect unequal down payments.
• Parents and adult children. Adding a child to title as a joint tenant raises separate issues, including whether the child is really meant to own the property or is holding it in trust. See our article on the risks of adding a child to title.

Separation, wills and changing your mind

• Separation. Between spouses, the form of title does not by itself settle how the property is divided. Under section 81 of the Family Law Act, subject to an agreement or order and the exceptions in the Act, on separation each spouse has a right to an undivided half interest in all family property as a tenant in common. Our guide to family property division explains what counts as family property.
• Wills. A will cannot leave property you hold as a joint tenant to someone other than the surviving joint tenant. If your will is meant to deal with the property, the form of title has to match.
• Changing the form of title. A joint tenancy can be ended, or severed, and turned into a tenancy in common, and co-owners can change their shares. Doing so has legal, tax and family consequences, so get advice before any transfer.

Questions to answer before you sign

• Who should own your share if you die first?
• Are you contributing equal amounts, and should the shares reflect that?
• Is anyone being added to title to help with financing rather than as a true owner?
• Do you need a co-ownership agreement covering expenses, a sale or one owner leaving?

Buying with someone else? Decide how to hold title before you sign

Our real estate lawyers can explain how each form of ownership would work for your purchase, register title the way you choose, prepare a co-ownership agreement where one is needed, and coordinate with your will so the plan holds together.

Call 604-259-2844 or send us a message to arrange a consultation at our Vancouver office.