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In This Volume

  • 177 If, on the registration of the title to land under an instrument or document, 2 or more persons are joint tenants, the registrar must enter in the register, following the names, addresses and occupations of those persons, the words “joint tenants”.

1979-219-174.

PRACTICE

Effect of Conveyance from One Joint Tenant to Another

If A and B are joint tenants, A severs the joint tenancy if A conveys a quarter interest to B. B would then have a three-quarters interest and A would have a one-quarter interest. The registrar would register a new indefeasible title showing A “as to a 1/4 interest” and B “as to a 3/4 interest”. See s. 189(5) of the Act. A and B could then apply under s. 192(3) of the Act for separate indefeasible titles.

Registrar Requires Severance of Joint Tenancy Where One Joint Tenant Gives Mortgage

Where one joint tenant gives a mortgage, the registrar requires a severance of the joint tenancy as a condition of registering the mortgage because the applicant mortgagee cannot otherwise demonstrate a good safe holding and marketable title. This is so because the death of the mortgagor may result in the surviving joint tenant taking free of the mortgage if there has not been a severance. To effect the necessary severance, that mortgagor can transfer their own interest to themselves. Registration of the transfer must precede registration of the mortgage.

Registrar Requires Severance of Joint Tenancy Where One Joint Tenant Grants Agreement for Sale Charging That Joint Tenant’s Interests

In view of Re Foort and Chapman, 1973 CanLII 1579 (BC SC), annotated below under “Case Law”, and in view of the need for a purchaser to demonstrate a good safe holding and marketable title, the registrar requires a severance of joint tenancy by a vendor joint tenant granting an agreement for sale before registration of the agreement for sale. Severance is required because the death of the vendor joint tenant may result in the surviving joint tenant taking free of the agreement if there has not been a severance. Severance can be effected by a transfer of that vendor’s interest from that vendor to themselves.

Joint Tenancy Not Permitted where One Tenant Holds Their Interest as a Trustee

When one tenant holds their interest in the land as a trustee, a true joint tenancy is not established. A true joint tenancy at law is created when joint tenants have identical interests in the property (i.e., unity of title, unity of time, unity of possession, and unity of interest). Joint tenants have one and the same interest, accruing by one and the same conveyance, commencing at one and the same time, and held by one and the same undivided possession (see Di Castri, Registration of Title to Land, para. 251). The Court of Queen’s Bench of Alberta ruled that a true joint tenancy was not created between a son, as non-trustee, and his father, as trustee for his son, as there was no unity of possession; rather, a tenancy in common was created whereby the father held his interest in the lands as bare trustee for his son (Krushelnicki v. Krushelnicki, 2019 ABQB 315 (Chambers)).

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

Company as Joint Tenant

See s. 31 of the Business Corporations Act, which provides that a corporation is capable of acquiring and holding property in joint tenancy in the same manner as a natural person and sets out the consequences of such ownership of property. Section 31(3) provides, in particular, that on dissolution of a corporation, property held in joint tenancy devolves on the other joint tenant.

Severance of Joint Tenancies

See s. 18(1) and (3) of the Property Law Act, R.S.B.C. 1996, c. 377, which provides:

  • 18 (1) A person may transfer land to himself or herself in the same manner as to another person, and, without restricting that power, a joint tenant may transfer his or her interest in land to himself or herself.
  • (3) A transfer by a joint tenant to himself or herself of his or her interest in land, whether in fee simple or by a charge, has and is deemed always to have had the same effect of severing the joint tenancy as a transfer to a stranger.

Survival Rules under the Wills, Estates and Succession Act

The Wills, Estates and Succession Act, S.B.C. 2009, c. 13 includes survival rules for joint tenancies. Under s. 5 of the Act, where joint tenants die simultaneously or under circumstances where it cannot be determined who survived the other, each joint tenant is deemed to have held property as a tenant in common.

Section 10 of the Act provides a five-day survival rule for joint tenants. A joint tenancy is negated when joint tenants die within five days of one another. In these circumstances, each joint tenant is deemed to have held property as a tenant in common.

Transmission of Joint Tenancies

See s. 269 of the Act regarding applications to register a transmission of land or a charge consequent on the death of a joint tenant.

Secondary Sources

See Di Castri, Registration of Title to Land, vol. 1, paras. 255 to 260.

CASE LAW

Notes on Case Law: The following case annotations are a sample of cases regarding the effect of various instruments or events on a joint tenancy. They are intended only as a starting point for research when considering whether a joint tenancy may have been severed.

Effect of Unregistered Conveyance on Joint Tenancy

A husband and wife owned property as joint tenants. Without telling her husband, the wife conveyed her interest by deed to her daughter from a former marriage, but the daughter did not apply to register the deed until three years later on the day after her mother’s death. The registrar did not inquire whether the grantor was dead or alive before registering the three-year-old deed, with the result that the husband brought an action for recovery from the assurance fund under s. 298 of the Act. The Supreme Court of Canada held that there had been no error on the registrar’s part as the joint tenancy had already been severed by the deed. It is the binding effect upon an owner of that owner’s dealings with their own property that effects a severance of the joint tenancy. In this case, the deed operated as an alienation of the interest of the grantor and the very fact of her interest being transferred to her daughter of itself destroyed the unity of title without which a joint tenancy cannot exist at common law (Stonehouse v. British Columbia (Attorney General), 1961 CanLII 48 (SCC)).

The petitioner and the respondent (now deceased) purchased a residential property as joint tenants. Before the respondent’s death, the parties agreed to list the property for sale and negotiations took place regarding the disposition of the property or at least the respondent’s interest in it. The respondent also executed, in his solicitor’s office, an application to re-register title to the property as a tenancy in common, although the solicitor did not file the application in the land title office until shortly after the respondent’s death. The petitioner sought a declaration that the joint tenancy had not been severed by the unregistered application and that she was entitled to sole ownership of the property on the respondent’s death. The court found that the application for re-registration was executed by the respondent and effective against him on the date it was signed. As such, the application severed the joint tenancy even though it was not registered until after the respondent’s death (Feinstein v. Ashford, 2005 BCSC 1379 (Chambers)).

Effect of Trust Declaration on Joint Tenancy

A man and former wife owned property as joint tenants. Without telling his former wife, the man executed a declaration of trust in favour of their infant son. The declaration was not registered, but it was left with his solicitor. Upon the death of the man, the former wife applied for a declaration that the property vested in her by right of survivorship and was successful. The Public Trustee appealed on behalf of the infant son. The court allowed the appeal, applying Stonehouse v. British Columbia (Attorney General). The declaration of trust had the same effect as a transfer to a trustee and therefore severed the joint tenancy (British Columbia (Public Trustee) v. Mee, 1971 CanLII 1150 (BC CA)).

Effect of Mortgage on Joint Tenancy

Two joint tenants, common law spouses, executed a joint and several collateral mortgage against their property. In foreclosure proceedings, the wife was successful in proving that the mortgage signed by her was obtained by unconscionable means and was therefore unenforceable. However, her release from the mortgage did not release the husband from liability. In the result, the mortgage split the unity of title to the property, severing the joint tenancy and establishing a tenancy in common. The mortgagee continued to have a collateral mortgage over the husband’s undivided one-half interest as tenant in common (Bank of Montreal v. Koszil, [1985] B.C.J. No. 2097 (QL) (C.A.); applied in Campbell v. Smith Estate, 1991 CanLII 741 (BC SC)), but see s. 231 of the Act, enacted in 1989).

A grant of mortgage vests the legal estate in the mortgagee (North Vancouver v. Carlisle, [1922] 3 W.W.R. 811 (B.C.C.A.)). Therefore, a joint tenant who mortgages their own interest severs the joint tenancy when executing the mortgage.

Effect of Agreement for Sale on Joint Tenancy

A joint tenant executed an agreement for sale which was registered as a charge against the title of property held in joint tenancy. That joint tenant subsequently died, and a dispute over her interest arose between the purchaser and the surviving joint tenant. The court held that the right of survivorship overrode the agreement for sale and that the registrar was not to treat the agreement for sale as severing the joint tenancy. The agreement for sale could only effect a charge upon the property in the nature of a right to purchase. It only gave the purchaser a right to purchase–it was not a deed of conveyance or transfer or surrender and did not effect a severance (Re Foort and Chapman, 1973 CanLII 1579 (BC SC)).

Effect of Order of Forfeiture on Joint Tenancy

An order of forfeiture under the Controlled Drugs and Substances Act, R.S.C. 1996, c. 19, can be made against a property held in joint tenancy. Where the offender holds a half interest in a property as a joint tenant, the effect of the forfeiture order is to sever the joint tenancy. Once severed, it is open to the Crown to register its interest in the forfeited property, as a tenant in common, in a manner acceptable to the registrar (R. v. Ford, 2010 BCCA 105).

Effect of Judgment on Joint Tenancy

A judgment creditor registered a judgment against the interest of a joint tenant. When that joint tenant died, a dispute arose between the surviving joint tenant and the judgment creditor, who claimed that the registration of the judgment severed the joint tenancy. The court held that the mere registration of a judgment against one joint tenant does not sever a joint tenancy or affect the ordinary operation of the right of survivorship upon the subsequent death of that joint tenant. The right of survivorship operated and accordingly the surviving joint tenant took the entire interest free of the registered judgment (Re Young Estate, 1955 CanLII 366 (ON CA); followed in Canadian Imperial Bank of Commerce v. Muntain, 1985 CanLII 716 (BC SC)).

Effect of Bankruptcy of Joint Tenant

An assignment in bankruptcy by a joint tenant severs the joint tenancy, with the result that the joint tenant’s one-half interest in property is vested in the trustee, subject to payment of one-half of whatever encumbrances there may be registered against title (Re White, 1928 CanLII 509 (ON SC)).