Severing a Joint Tenancy in BC: When and How Co-Owners Change Their Title

When two people own a home as joint tenants, the survivor automatically takes the whole property when one of them dies. That suits many couples, but it can stop making sense after a separation, a falling-out between co-owners, or a new relationship.

Severing the joint tenancy turns it into a tenancy in common, so each owner's share passes under their own will or estate. This article explains how co-owners in BC sever, whether one owner can do it without the other's consent, and what to check first.

What severing a joint tenancy does, and what it does not

If you are still choosing how to hold title, our guide to joint tenants and tenants in common explains the two forms. This article assumes you already own as joint tenants and want to change that.

Severance does one main thing: it ends the right of survivorship. After severance, the owners hold as tenants in common, and when one dies, that owner's share goes to the people named in their will (or under the intestacy rules) rather than automatically to the other owner.

Severance does not remove anyone from title, end anyone's right to live in the home, pay out or change the mortgage, or decide how the property will be divided between separating spouses. Those are separate questions.

Can one joint tenant sever without the other's consent?

Generally, yes. Section 18 of BC's Property Law Act says a person may transfer land to themselves in the same way as to another person, and specifically that a joint tenant may transfer their interest to themselves. Section 18(3) adds that this kind of transfer has, and is deemed always to have had, the same severing effect as a transfer to a stranger.

In practice, that means one co-owner can usually sever by signing a transfer of their own interest to themselves as a tenant in common. The section does not make the other owner's signature a requirement. Severance can also happen by agreement between all the owners, for example as part of a co-ownership or separation agreement. Arguments that a joint tenancy was severed informally, by conduct or by an unregistered document, are much less certain and often end up in court after a death, which is why a registered transfer is the usual route.

Why registration at the Land Title Office matters

Section 20 of the Land Title Act says that, except as against the person who made it, an instrument that transfers or deals with land does not pass an interest in the land unless it is registered. A signed transfer sitting in a drawer is a weak position, especially if the owner who signed it dies before it is registered and the surviving owner claims the whole property.

A lawyer prepares the transfer, confirms the current title and any charges against it, and registers the document so the new form of ownership appears on title. Once registered, the title shows the owners as tenants in common. Where two joint tenants sever, each typically ends up with a half interest on title, although agreements between the owners or family law can affect who is ultimately entitled to what.

Severing after separation

Separation is one of the most common reasons to sever. Under section 81 of the Family Law Act, on separation each spouse has a right to an undivided half interest in all family property as a tenant in common, and family property is then divided under the Act or by agreement. Whether separation alone is enough to end survivorship on a registered joint tenancy is not something to rely on. Registering a severance removes that doubt if one spouse dies before the property is dealt with.

Severing does not settle the family law questions. You may still need an agreement or order about who keeps the home, a buyout or a sale; see our articles on the family home after separation and stopping a spouse from selling or mortgaging property. Because your share will now pass under your will, update the will too: after separation, update your will and beneficiaries.

Points to check before you sever

• Your mortgage. A severance does not release either owner from the mortgage. Have your lawyer check the mortgage terms for anything triggered by a transfer.
• Tax on the transfer. Ask your lawyer to confirm whether property transfer tax applies to your transfer or whether an exemption is available. Do not assume either way.
• Your estate plan. Once severed, your share is part of your estate. Without a current will, it will pass under the intestacy rules, which may not match your wishes.
• The relationship. A unilateral severance can escalate a dispute. In a family matter, it is worth discussing timing and strategy with a family lawyer first.
• Who else is on title. With three or more owners, a severance by one of them can leave a mix of interests on title. Get advice on how your title will read afterwards.

If a joint owner has already died

If no severance was registered and one joint tenant has died, the survivor normally applies to have title transferred into their own name. Our guide to transferring the house after a joint owner dies explains that process. If you believe the joint tenancy was severed before the death, or that the survivor holds the property for the estate, get advice promptly, because those claims depend heavily on the documents and the timing.

Thinking about severing? Get the transfer prepared and registered properly

Our real estate lawyers can review your title and mortgage, explain how severance fits with any family law or estate issues, and prepare and register the transfer for you.

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