6.1 Co-Ownership: Joint Tenancy vs. Tenancy in Common
Key Takeaways
Joint tenancy combines the four unities and survivorship while it continues. Tenants in common hold distinct undivided interests that can be unequal.
The instrument must sufficiently show a joint tenancy to displace the ordinary statutory presumption of tenancy in common, subject to exceptions.
A self-transfer can sever a joint tenancy. Section 65 sets the execution, written consent or service evidence for registration.
The Law of Property Act permits court-ordered division, sale or purchase by a co-owner and allows appropriate accounting adjustments.
Read the form of co-ownership
Joint tenancy combines the four unities of possession, interest, title and time. The joint tenants hold the same estate under the same conveyance and at the same time, with undivided possession. The right of survivorship applies while the joint tenancy continues. Avoid describing each joint tenant as holding a separate disposable percentage under the joint title. A defined fractional interest can itself be held by joint tenants who together hold that fraction as tenants in common with others. For example, A and B could hold a joint tenancy in an undivided one-half interest while C holds the other half. If A dies before any severance, B succeeds to the joint interest and becomes the sole holder of that half. C keeps the other half. If C dies, C’s half is dealt with in C’s estate.
Tenants in common have distinct undivided interests and each has a right to possession of the whole subject to applicable agreements or orders. Interests can be unequal. Under section 8 of the Law of Property Act, a grant to two or more people ordinarily creates tenancy in common unless joint tenancy intention sufficiently appears in the instrument. The section excepts executors and trustees. The Land Titles TEN-2 procedure says the Registrar does not assume equal proportions when a tenancy-in-common instrument does not specify them.
| Event | Joint tenancy | Tenancy in common |
|---|---|---|
| Death | A surviving joint tenant takes by survivorship if the joint tenancy has continued and the applicable facts support it. The deceased's will cannot pass the extinguished joint interest. | The deceased’s interest falls into the estate and is dealt with under the will or intestacy rules. Verify the personal representative’s authority and the transmission procedure. |
| Transfer of an interest | Transfer can sever the transferring tenant’s joint interest. Review registration, notice and other applicable rights. | A co-owner can generally deal with their own undivided interest subject to applicable restrictions. Transfer of the whole requires authority for all interests. |
| Change to the register | For an ordinary survivorship update, the survivor applies with acceptable proof of death. | Review the title, any court grant and the documents required for estate transmission. |
Unequal financial contributions and unequal legal title are separate questions. Two investors can choose tenancy in common with expressly stated 75% and 25% interests. They cannot record those unequal fractional interests as one joint tenancy. Separate agreements about contributions or beneficial ownership may affect the parties' rights. Refer that structuring question to counsel.
Severance and termination of co-ownership
A joint tenant may convey their interest to themselves as a tenant in common under Law of Property Act section 12(1)(d). Under Land Titles Act section 65, a transfer that severs joint tenancy can be registered when all joint tenants execute it, the others consent in writing, or satisfactory evidence shows each non-signing, non-consenting joint tenant was given written notice of the intention to register. The notice must be personally served or substitutionally served under a court order. Refusal to sign does not itself prevent severance. Proceeding without the required notice evidence does not meet the registration rule. A transfer to another person, an agreement or a course of dealing may raise severance issues. Have counsel determine the effect, timing and proof before assuming survivorship is gone.
Under Law of Property Act section 15, a co-owner may seek a King’s Bench order for physical division, a sale and distribution, or a sale of an interest to a willing co-owner. Section 17 permits accounting, contribution or adjustment, including consideration of exclusion, excess rents or profits, waste and improvements that increase realizable value. Reimbursement is not automatic. Section 19 severs a joint tenancy on the grant of an order under that Part. Check sections 20–21 for homestead compensation and interaction with family proceedings. A physical division may also require planning approvals. If one co-owner proposes a buyout, the court sets the value and terms under section 15(4). An appraisal and evidence of payments can support different questions. The appraisal addresses value and the payment evidence supports any accounting or contribution claim. Check title, family orders, financing and beneficial interests before listing or promising a division.
Law of Property Act · Land Titles Act · Land Titles TEN-2 · Alberta title ownership changes
Two buyers want to hold specified 75% and 25% registered interests, with each interest capable of passing to its owner’s estate. Which form fits those instructions?
One joint tenancy with two unequal registered fractions.
Tenancy in common with the specified undivided proportions.
Joint tenancy supported by an unequal mortgage contribution.
Sole ownership by the larger investor, with the smaller investor omitted from title.
Dev and Ali are the only joint tenants. Dev seeks to register a self-transfer to sever the joint tenancy. Ali has not signed or consented. Which registration route remains available to Dev under section 65?
Submit a copy of Dev’s will explaining the intention to sever.
Register the self-transfer without involving Ali because notice is always optional.
Provide satisfactory evidence that Ali was personally served with written notice of intent to register or served under a court substitution order.
Apply for a veto from Ali because a self-transfer is impossible without written consent.
Which remedy can a co-owner request under section 15 of Alberta’s Law of Property Act when the other co-owner will not agree on how to end co-ownership?
A court order for division, sale and distribution, or sale of an interest to a willing co-owner.
Automatic possession of the entire parcel by the person who first requests a sale.
Mandatory reimbursement of all expenses before the court considers any other facts.
An order forcing the Land Titles Registrar to assign the parcel to the party with the larger contribution.
Sections you finish are checked off in the contents.