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Joint Tenancy vs Tenants in Common Canada: Rights and Estate Planning

Updated

Two people who own a property together hold it either as joint tenants or as tenants in common, and the choice decides what happens when one of them dies. With joint tenancy, the survivor automatically owns the whole property, outside the will and the estate. With tenancy in common, each owner’s share passes under their own will. This page compares the two and covers the common situations where the choice matters. It is part of our estate planning guide.

Joint tenancy vs tenants in common: key differences

FeatureJoint tenancyTenants in common
Right of survivorshipYes: the survivor owns the whole propertyNo: each share goes through the owner’s estate
SharesEqualCan be unequal (40/60, 25/75 and so on)
Governed by the will?No: survivorship overrides the willYes
Probate on the first deathNot on the propertyYes, on the deceased’s share
Can one owner end the arrangement?Yes, by severing itEach already owns a separate share
Typical ownersSpousesUnmarried partners with unequal contributions, business partners, siblings, second marriages

Probate and the two structures

Because a joint tenant’s interest passes by survivorship, the property isn’t counted in their estate for probate. A tenant in common’s share is, so its value adds to the probate fee in their province. Joint tenancy only delays probate, though: when the last joint owner dies, the property goes through their estate. The fees in each province, with worked amounts, are in probate fees by province.

Example (Ontario): a sole owner’s $800,000 home passing through the estate would add $11,250 in Estate Administration Tax, if it were the whole estate; held in joint tenancy with a spouse, it passes to the spouse outside the estate.

Adding an adult child to the title

Some parents add an adult child to a home’s title as a joint tenant so it passes outside probate. The risks:

RiskWhat can happen
TaxTransferring part of a property is a disposition, so a gain can be taxed now on any part that isn’t sheltered by the principal residence exemption, and the child’s share may not qualify for the exemption later
Land transfer taxSome provinces charge land transfer tax on the transfer
The child’s creditorsThey can claim against the child’s interest
The child’s separationThe interest can become part of a family property claim
Selling or refinancingThe child’s signature is needed
The estate’s claimWhere a parent adds an adult child without making a gift, the law can presume the child holds the share in trust for the estate, so the parent’s intention needs to be written down

That last point comes from the Supreme Court of Canada’s Pecore decision, which also applies to joint bank accounts; see joint accounts after a death. Other ways to pass property outside the estate are compared in the beneficiary designation guide.

Changing from tenants in common to joint tenancy

Spouses who bought as tenants in common sometimes convert to joint tenancy for the survivorship. It takes a transfer registered at the provincial land registry, usually through a real estate lawyer, and the property insurance should reflect the new ownership. Transfers between spouses can generally be made without triggering a capital gain.

Which structure fits which situation

SituationStructure often used
A married couple buying a homeJoint tenancy, for the automatic transfer
Unmarried partners with unequal contributionsTenancy in common, with the split recorded
A parent and adult child buying togetherTenancy in common, so the parent’s share stays in the parent’s estate
Business partners buying an investment propertyTenancy in common
Siblings inheriting a cottageTenancy in common, so each sibling plans their own share (see cottage succession planning)
A second marriage with children from the firstTenancy in common, so a share can go to the first family’s children

Tax at death

In both structures, the deceased is treated as having sold their interest at fair market value immediately before death, and any gain not sheltered by the principal residence exemption is reported on their final return, unless it passes to a spouse, which defers the gain. How the deemed disposition works is in taxes at death, and the return itself in how to file taxes for a deceased person.

Severing a joint tenancy

A joint tenant can usually end the joint tenancy on their own, turning it into a tenancy in common, by registering a document at the land registry (in Ontario, a transfer to sever the joint tenancy). Transferring their interest to someone else also severs it.

ReasonDetails
Separation or divorceSo each spouse’s share no longer passes to the other
Estate planningSo your share goes to your children rather than your co-owner
Changed contributionsWhen one owner starts paying more or less

A separation or divorce doesn’t automatically sever a joint tenancy in most provinces, so a separated spouse may still receive the property by survivorship until it is severed; the rest of a separation is in the divorce and separation financial checklist.

A co-ownership agreement

Whatever the title says, a written co-ownership agreement records:

TopicWhat it covers
Ownership sharesWho owns what
ContributionsDown payment, mortgage payments, taxes, insurance, maintenance
DecisionsRenovations and major repairs
SellingThe process, a right of first refusal, how proceeds are split
DisputesMediation before court
SeparationBuyout process, timeline and valuation
DeathHow it fits with each owner’s will; see how to make a will

Common mistakes

  • Assuming spouses own as joint tenants. The title has to say “joint tenants”; some couples hold as tenants in common without knowing it.
  • Adding a child to title without paperwork. Without a written record of the intention, the share can end up back in the estate, and the tax and creditor risks above apply anyway.
  • Not severing after a separation. Survivorship can still pass the home to a former spouse.
  • Relying on survivorship for incapacity. A joint tenant who loses capacity still has to sign to sell or refinance; a power of attorney is what lets someone act for them.

Sources

The figures and rules on this page come from these sources. How we check facts.