Joint tenants or tenants in common?

When land is transferred to more than one party, they can be registered on the title either as joint tenants or as tenants in common.

Joint Tenants

If you choose to be registered as joint tenants, then upon the death of one joint tenant, the survivor/s must register the death on the title (a Section 100 Application). Upon registration of the Section 100 Application, the ownership of the land vests in the name of the surviving joint tenant/s. Even though the deceased person’s share in the property passes to the survivor/s by operation of law, you should still seek advice about the wording of your will because it should make some provision in case both or all joint tenants die simultaneously.

By being registered as joint tenants, each joint tenant owns an equal share of the whole of the property. Many spouses register as joint tenants because, in the event of their death, they want their interest in the property to automatically vest in the surviving spouse’s name.

Tenants in Common

If you choose to register as tenants in common, then upon the death of a tenant in common, the deceased’s executor as named in their will applies to the court for probate of the will. The executor then lodges a Section 99 Application with the Land Titles Office that allows the executor to deal with the property in accordance with the terms of the will. The deceased’s share in the property can then be transferred to their intended beneficiary (a transfer by assent).

Business partners would usually register as tenants in common so that their share in the property would be dealt with in accordance with the terms of their will. Sometimes, spouses with children from a previous relationship may also hold as tenants in common to allow their children to receive the benefit of their parent’s interest in the property in accordance with the terms of their will.

Tenants in common can also hold the property in unequal shares, which is often determined by the amount of capital being contributed by each person.

If you're not sure which option is right for you, get in touch with us for a consultation.

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