11 Tenancy In Common

PRACTICE

Undivided Interests on Title

An instrument shows ownership held as follows:

• John Doe, Retired
• Jane Doe, Retired
• Both of 1–445 Clark Street
• Vancouver, BC
• V6K 2R6
• Joint Tenants

• Jack Smith, Clerk
• 225 Brown Street
• Vancouver, BC
• V6N 3R7

The registrar assumes that John Doe and Jane Doe together hold a one-half interest, and, as between themselves are joint tenants, while Jack Smith holds a one-half interest as a tenant in common as between himself and the other owners. Given that in such circumstances the registrar assumes this division of ownership, drafters of instruments should specify the tenancies and the proportions of property held, as in the example below, if they desire another result.

• John Doe, Retired
• Jane Doe, Retired
• Both of 1–445 Clark Street
• Vancouver, BC
• V6K 2R6
• Joint Tenants as to a 2/3 interest

• Jack Smith, Clerk
• 225 Brown Street
• Vancouver, BC
• V6N 3R7
• Tenant in Common as to a 1/3 interest

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

Registration of Joint Tenancy

See ss. 173 and 177 of the Land Title Act in chapter 12 (Land Title Act Part 11 (ss. 169 to 184)—Registration in Fee Simple).

Severance of Joint Tenancy by Conveyance or Mortgage

See the “Practice” notes under s. 177 of the Land Title Act in chapter 12 (Land Title Act Part 11 (ss. 169 to 184)—Registration in Fee Simple).

Severance of Joint Tenancy by Transfer to Self

See s. 18 of the Act.

Secondary Sources

See Di Castri, Registration of Title to Land, vol. 1, paras. 232, 244, 245, and 251.

CASE LAW

Application of Presumption

At issue was whether two vendors under an agreement for sale were joint tenants. Section 11 was of no assistance because it provides that two or more purchasers hold as tenants in common unless a contrary intention appears in an instrument. The section makes no similar provision for vendors and, accordingly, has no bearing on the classification of vendors (Landon v. Blaskovits, [1986] B.C.J. No. 2323 (QL) (S.C.)).

The plaintiff and her husband (now deceased) purchased shares in a co-operative residential building and received an assignment of lease in both of their names. Neither the assignment of lease nor the share certificate indicated whether they were joint tenants or tenants in common. At common law, when real or personal property is granted to two or more persons with no words of severance, the persons are joint tenants, unless there is a basis in equity for finding a tenancy in common. Section 11(2) refers to a transfer of land in fee simple and cannot be interpreted to apply to an assignment of a lease. Therefore, the plaintiff had a right of survivorship that became operative when her husband died (Robb v. Robb, 1993 CanLII 1381 (BC SC)).