269 Transmission Re Joint Tenancies

FORMS

Forms of Application

Electronic Submissions

On the Form 17 Fee Simple or Form 17 Charge, Notation or Filing, select Nature of Interest, Transmission to Surviving Joint Tenant, and attach an image of the original transmission documents required by s. 269.

PRACTICE

Variations in Deceased’s Name

If there are variations in the deceased’s name, the registrar may require a statutory declaration as to identity.

The original statutory declaration describing the variation in name is appended in support of the Form 17 application.

Death Certificates Not in English

Certificates, such as death certificates, issued by public officers outside of Canada may not be in the English language. Where a death certificate has been issued by the appropriate public officer but is not in the English language, it must be translated by someone fluent in both English and the language used on the certificate. The translator must complete a statutory declaration, confirming the translation is accurate and true.

Judgment Against Deceased Joint Tenant

On application to register a transmission to a surviving joint tenant, where the title is encumbered by judgments that identify the deceased joint tenant as the judgment debtor, the applicant must set out the judgments to be dropped in the Additional Information field in Item 3 of the Form 17.

See the case annotation for Re Young Estate, 1955 CanLII 366 (ON CA) under Case Law.

Failure of Survivor to Effect Transmission before Death

Where joint tenants have both died and the survivor, before the survivor’s death, did not file the documents necessary to effect a transmission, the registrar requires that the title be registered in the name of the deceased survivor’s personal representative. The applicant must proceed by filing a death certificate for the first deceased and the documents required under s. 265 or s. 266 in support of the transmission to the personal representative of the last deceased.

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

Return of Death Certificate

When presenting a death certificate, an applicant may request that the registrar photocopy it and return the certificate to the applicant. See s. 38(6) of the Act.

Right of Survivorship

Death Prior to March 31, 2014

The death of one joint tenant creates no vacancy of ownership. If there are two joint tenants, the survivor is seized of the whole estate. If there are more than two joint tenants, the survivors continue to hold as joint tenants. See Megarry’s Manual of the Law of Real Property (8th ed.), pp. 303 to 304. Where both joint tenants die on the same day, the registrar requires evidence of who died first. Where no evidence is provided to the registrar’s satisfaction, the registrar applies the presumptions under the Presumption of Death Act. See the discussion of this Act at chapter 63 (Trustees, Personal Representatives, and Trustees in Bankruptcy).

Death After March 30, 2014

The death of one joint tenant creates no vacancy of ownership. If there are two joint tenants, the survivor is seized of the whole estate. If there are more than two joint tenants, the survivors continue to hold as joint tenants. See Megarry’s Manual of the Law of Real Property (8th ed.), pp. 303 to 304. Where joint tenants die in circumstances that make it uncertain which of them survived the other or joint tenants die within 5 days of each other, the interests of the joint tenants must be dealt with in accordance with s. 5 or s. 10 of the Wills, Estates and Succession Act. See the discussion of these sections at chapter 63 (Trustees, Personal Representatives, and Trustees in Bankruptcy).

Secondary Sources

See Di Castri, Registration of Title to Land, vol. 2, para. 686.

CASE LAW

Mere registration of a judgment against one of the co-owners’ interest does not sever a joint tenancy. In such cases where the judgment debtor dies, the surviving co-owner takes the property free and clear from the judgment (Re Young Estate, 1955 CanLII 366 (ON CA)).

See also the case annotations under s. 177 of the Act regarding the effect of various instruments or events on a joint tenancy.