In Jackson v. Rosenberg, 2024 ONCA 875, The Ontario Court of Appeal revisited a key concept in Ontario property law: the joint tenancy, and how it is distinguished from from a tenancy in common.
The Appellant was the great-niece of the Respondent’s romantic partner. In or around 2012, The Respondent conveyed a 50% joint tenancy in his primary residence to the Appellant through a gratuitous transfer. The Respondent’s evidence was that this transfer was made so that title of his house could pass to the Respondent upon his death without needing to pay probate fees.
In or around 2020, the Respondent became concerned that the Appellant was going to use the joint tenancy the Respondent had conveyed to in 2012 to force him out of his home. The Respondent engaged a lawyer to convert the Respondent’s joint tenancy interest into a tenancy in common. The Appellant commenced an appeal for a declaration that the Appellant was not entitled to make the 2020 transfer.
To make findings on the issues being appealed, the Court needed to determine whether the Respondent’s 2012 transfer to the Appellant created a resulting trust over the Appellant’s joint tenancy interest in the Respondent’s favour, or if this interest was a gift by the Respondent to the Appellant. This in turn required a survey of the rights afforded by the two types of tenancy, and which one reflected the intentions of the Respondent at the time of making the 2012 transfer.
To that end, the Court began its decision by discussing the rights afforded to a party with a joint tenancy interest:
“Joint tenancy is a form of property ownership with specific attributes, one of which is the right of survivorship. Upon the death of one joint tenant, their interest in the jointly held property passes to the surviving joint tenant – it does not form part of the estate of the deceased joint tenant and is not subject to probate fees.
But the right of survivorship is not the only attribute of a joint tenancy. During their joint lives each joint tenant with a beneficial interest has immediate rights, including an undivided interest in the ownership of the property, a right to possession, a statutory right to compel partition or sale of the entire property, and the right to sever the joint tenancy, converting it to a tenancy in common. Tenants in common do not have a right of survivorship.” [citations omitted]
The Court further discussed the key difference between a joint tenancy and a tenancy in-common at paragraph 66, in reliance on its previous decision in Hansen Estate v. Hansen, 2012 ONCA 112:
“Ultimately, the critical distinction between [a joint tenancy and a tenancy in common] … is the right of survivorship….
Through the right of survivorship, the interest of a co-owner in a joint tenancy will pass equally to all of the other co-owners upon his or her death. If multiple co-owners remain, the joint tenancy remains in existence, while if only one owner survives, the entire interest in the property passes to the survivor. In contrast, upon the death of a co-owner in a tenancy in common, the deceased’s interest in the property passes to his/her estate. [Emphasis added; internal citations omitted.]”
The Court ultimately found that the Respondent only intended to convey a right of survivorship to the Appellant via his 2012 transfer, and that the Appellant’s interest in the joint tenancy was held in trust for the Respondent. The Court further held that the Respondent’s 2020 conversion of the Appellant’s joint tenancy into a tenancy in common was permitted, and the Respondent had removed the Appellant’s right of survivorship by doing so.
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