Two people buy a house together. One signs the deed assuming the survivor will automatically inherit the property. The other assumes their share will go to their kids when they die. Years later, the truth comes out and the family ends up in court.
The way you take title to property in Ontario shapes what happens when one owner dies, when relationships fall apart, when creditors come knocking, and when estate planning kicks in. The two main forms of co-ownership, joint tenancy and tenancy in common, look similar from the outside but produce very different legal results.
This guide breaks down both forms, the Ontario law that governs them, how joint tenancies get severed, what happens at death, and which form is right for your situation.
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Tenants In Common Vs Joint Tenancy
Joint tenancy is co-ownership where all owners hold equal shares and the property passes to the surviving owner or owners when one of them dies, outside the estate, without probate.
Tenancy in common is co-ownership where each owner holds a defined share (often unequal) and the share passes to the estate of an owner who dies, distributed under the will or under Ontario’s intestacy rules in the Succession Law Reform Act.
The most important practical difference is the right of survivorship. Joint tenants have it. Tenants in common do not.
The Four Unities of Joint Tenancy
For Ontario law to recognize a joint tenancy, four unities (often remembered with the acronym PITT) must exist at the moment title is registered.
Possession. Each joint tenant has an equal right to possess the entire property. No owner has the right to exclude another.
Interest. Each joint tenant holds an identical interest in the property. Same percentage, same duration, same nature (freehold, leasehold, etc.).
Title. All joint tenants acquired their interest through the same instrument (the same deed or the same will).
Time. All joint tenants acquired their interest at the same time.
If any of these unities is missing or later broken, the joint tenancy is either never created in the first place or is severed and becomes a tenancy in common.
Tenancy in common requires only one unity, the unity of possession.
What Is Joint Tenancy
A joint tenancy is a form of co-ownership where every owner holds an undivided equal interest in the whole property. No owner has a separate share that can be pointed to. They all own all of it, together.
The defining feature is the right of survivorship (in legal Latin, the jus accrescendi). When one joint tenant dies, that owner’s interest simply extinguishes. It does not transfer. The surviving joint tenant or tenants continue to own the property, and their existing interest now covers what the deceased owner held.
The practical effect is that joint tenancy property never passes through the deceased owner’s estate. It is not controlled by their will. It is not subject to probate. The Estate Administration Tax (roughly 1.5 percent of the value over $50,000 in Ontario) is not payable on jointly held property because the property never forms part of the estate.
Joint tenancy is most often used by spouses and common law partners who want the property to pass automatically to the survivor. It is also used by parents who want to leave property to an adult child without going through probate, although this approach has significant tax and legal risks that I will cover below.
What Is Tenancy in Common
Tenancy in common is a form of co-ownership where each owner holds a defined share of the property. The shares can be equal or unequal. Two owners might hold 50/50, 60/40, or 90/10. Three owners might hold 33/33/34 or 50/30/20.
There is no right of survivorship. When a tenant in common dies, their share passes to their estate and is distributed under their will, or if they have no will, under the Succession Law Reform Act’s intestacy rules. The other co-owners do not automatically receive that share.
Each tenant in common can deal with their own share independently. They can sell it, mortgage it, gift it, or leave it to anyone in their will, without the consent of the other owners. The buyer or transferee then becomes a tenant in common with the remaining owners.
Tenancy in common is the standard choice for friends or business partners buying together, family members where each branch wants its own share to follow its own estate plan, and any situation where the co-owners want flexibility about what happens at death.
The Ontario Default Rule
This is one of the most misunderstood points in Ontario co-ownership law.
Under section 13(1) of the Conveyancing and Law of Property Act, when property is granted, conveyed, or devised to two or more people, those people are presumed to take as tenants in common, not as joint tenants, unless the instrument clearly says otherwise.
In practical terms, the words “as joint tenants” must appear on the deed or in the will. If the document is silent, tenancy in common applies, even if the parties intended a joint tenancy.
This is the opposite of the common law rule that applied before 1834. Ontario reversed the common law presumption to protect heirs and to prevent accidental disinheritance.
Most Ontario real estate transfers prepared by a lawyer specify the form of ownership explicitly on the transfer document. If the form is missed or left blank, the property is held as tenants in common by default.
Side by Side Comparison
| Issue | Joint Tenancy | Tenancy in Common |
| Ownership shares | All owners share equally | Owners can hold equal or unequal shares |
| Right of survivorship | Yes, the survivor takes automatically | No, the share passes to the estate |
| Required at formation | Four unities (Possession, Interest, Title, Time) | Only unity of possession |
| What happens at death | Interest extinguishes, survivor owns everything | Share passes to deceased’s estate |
| Effect on the deceased’s will | Will has no effect on jointly held property | Will controls the share |
| Probate (Estate Administration Tax) | Avoided on jointly held property | Tax applies to the share in the estate |
| Can each owner sell their share? | Yes, but this severs the joint tenancy | Yes, freely, without affecting others |
| Can each owner mortgage their share? | Yes, but severs the joint tenancy as to that share | Yes |
| Creditor claims at death | Survivor takes, free of deceased’s debts | Creditors can claim against the share |
| Common Ontario users | Spouses, common law partners | Friends, family branches, business partners |
| Ontario default rule | Must be expressly stated | Applies if instrument is silent |
How a Joint Tenancy Gets Severed
A joint tenancy is fragile. Once any of the four unities is broken, the joint tenancy ends as to the affected share and becomes a tenancy in common. This process is called severance.
Ontario courts apply the three rule framework from the English case Williams v Hensman (1861), confirmed and explained by the Ontario Court of Appeal in Hansen Estate v Hansen, 2012 ONCA 112.
Rule 1. Unilateral action on one’s own share. A joint tenant can unilaterally end the joint tenancy by transferring their interest to a third party, mortgaging their share, or transferring their share to themselves. Sections 41 and 42 of the Conveyancing and Law of Property Act expressly permit a person to convey property to themselves, and this is the standard mechanism used in Ontario to register a severance.
Importantly, no notice to the other joint tenants is required. A joint tenant can sever the tenancy by registering a transfer at Teraview without telling the other owners. The Ontario Court of Appeal confirmed this in Jackson v Rosenberg, 2024 ONCA 875.
Rule 2. Mutual agreement. All joint tenants can agree in writing to convert the joint tenancy to a tenancy in common. The agreement should be in writing, signed by all parties, and the title should be amended to reflect the change.
Rule 3. Course of dealing. Even without an express agreement, a course of conduct that shows the parties treated their interests as separate can sever the joint tenancy. This is what happened in Hansen Estate v Hansen, where a separating couple negotiated the division of all their assets, opened separate bank accounts, and stopped sharing the home, but the husband died before the severance was formally registered. The Ontario Court of Appeal held that the joint tenancy had been severed by the parties’ course of dealing, so the wife did not inherit by survivorship.
Severance is a powerful tool, but it must happen during the joint tenant’s lifetime. Once a joint tenant dies, it is too late. The right of survivorship has already vested in the survivor and no instrument signed afterward can undo it.
The Matrimonial Home Rules
Joint tenancy in the matrimonial home has special rules under the Family Law Act.
Section 21 of the Family Law Act prohibits a spouse from disposing of or encumbering an interest in a matrimonial home without the other spouse’s consent or a court order. This protects spouses from losing housing rights to the unilateral acts of the other.
However, in Horne v Horne Estate (1987), the Ontario Court of Appeal held that a joint tenant spouse can sever a joint tenancy by transferring to themselves, because severance does not “dispose of” an “interest” in the matrimonial home within the meaning of section 21. The non severing spouse keeps their proprietary half interest, just without the right of survivorship.
Section 26(1) of the Family Law Act provides that when a spouse holds a matrimonial home in joint tenancy with a third party (not the other spouse) at the moment of death, the joint tenancy is deemed to be severed immediately before death. This prevents a non spouse joint tenant from using the right of survivorship to defeat the surviving spouse’s rights to the matrimonial home.
Separating couples should always consider severing the joint tenancy at the start of separation. Without severance, if one spouse dies during separation, the survivor inherits the entire home by right of survivorship, even if the parties had agreed in writing to divide everything.
Tax and Estate Planning Implications
Probate avoidance. Property held in joint tenancy passes outside the estate, so Estate Administration Tax does not apply. On a $1.5 million home, this saves approximately $22,000 in probate tax. The probate process itself is also avoided for jointly held property.
Capital gains tax. Transferring property to a joint tenancy with a non spouse can trigger a deemed disposition for tax purposes under the Income Tax Act. Half the appreciation may be taxable immediately. For spouses, the transfer is tax neutral under the spousal rollover rules.
Income attribution. Joint tenancy between spouses triggers income attribution rules. Rental income or capital gains on a jointly held rental property may be attributed back to the spouse who contributed the funds, regardless of how title is held.
The parent and adult child trap. Parents often add an adult child as a joint tenant to avoid probate. The Supreme Court of Canada in Pecore v Pecore, 2007 SCC 17 held that for transfers from a parent to an adult independent child, there is a presumption of resulting trust. This means the child holds the property in trust for the parent’s estate unless there is clear evidence the parent intended a gift, including the right of survivorship. Many of these arrangements end up in court when the parent dies.
Creditor exposure. Adding a joint tenant exposes the property to that person’s creditors. If the joint child files for bankruptcy, divorces, or is sued, the property can be drawn into the proceedings.
This is one of those areas where the right answer depends entirely on the specific facts. Talk to both a real estate lawyer and a tax advisor before adding anyone to title.
Practical Scenarios
Married couples or common law partners buying together. Joint tenancy is the standard choice. The right of survivorship matches what most couples want, and the spousal rollover avoids the tax problems that affect other relationships.
Friends buying together. Tenancy in common is almost always the right choice. Each friend’s share goes to their estate, where they can leave it to family, partners, or anyone else. A co-ownership agreement should set out the buyout terms, dispute resolution, and rules for selling.
Family branches buying a vacation property. Tenancy in common, with each branch holding a defined share. A co-ownership agreement governs how the property is used, who pays for what, and what happens when an owner wants out.
Business partners buying commercial real estate. Tenancy in common, often through a corporation or partnership structure for liability and tax reasons. See our business structure guide for more.
Parent and adult child to avoid probate. Risky. If you go this route, document the intention to make a true joint tenancy with a right of survivorship, get tax advice, and have a real estate lawyer review the structure. The wrong setup creates resulting trust disputes that can cost tens of thousands of dollars to litigate.
Investors pooling money to buy property. Tenancy in common with a written co-ownership agreement. The shares should reflect the actual financial contributions.
Common Mistakes
Assuming joint tenancy is automatic. Under section 13(1) of the Conveyancing and Law of Property Act, the Ontario default is tenancy in common. The deed must say “as joint tenants” or the parties take as tenants in common.
Adding a child to title without tax advice. A parent who adds an adult child as a joint tenant of a property other than the principal residence can trigger an immediate capital gain on half the appreciation. The Canada Revenue Agency does not care that the transfer was meant as an estate planning shortcut.
Forgetting to sever during separation. Spouses who separate but do not formally divorce can still hold the matrimonial home as joint tenants. If one dies, the survivor inherits everything, even if a separation agreement was in negotiation. Sever the joint tenancy as soon as separation is decided.
Relying on a will to override survivorship. A will cannot defeat the right of survivorship. If you hold property as a joint tenant, the property passes to the survivor regardless of what your will says. Sever the joint tenancy before death if you want the will to control.
Skipping the co-ownership agreement. Even when title is registered correctly, disputes happen. A written co-ownership agreement should address contributions, expenses, repairs, sale rights, buy outs, dispute resolution, and what happens at death.
Not updating title after a divorce. Many divorced couples keep joint tenancy on a rental or investment property out of inertia. If one dies, the ex spouse inherits the entire property, which is almost never the intended outcome.
Frequently Asked Questions
What is the main difference between joint tenancy and tenants in common in Ontario?
The right of survivorship. In a joint tenancy, when one owner dies, the surviving owner or owners automatically take the deceased’s interest, outside the estate and outside the will. In a tenancy in common, the deceased owner’s share passes to their estate and is distributed under their will or under Ontario’s intestacy rules. Joint tenancy avoids probate. Tenancy in common does not.
What is the default form of co-ownership in Ontario if the deed is silent?
Tenancy in common. Section 13(1) of the Conveyancing and Law of Property Act, RSO 1990, c. C.34 reverses the old common law rule and presumes a tenancy in common unless the document expressly says “joint tenants.” If you want a joint tenancy, the deed must say so clearly.
Can a joint tenant sever the joint tenancy without telling the other owners?
Yes. Under Ontario law, a joint tenant can unilaterally sever the joint tenancy by registering a transfer to themselves at Teraview. The Ontario Court of Appeal confirmed this in Jackson v Rosenberg, 2024 ONCA 875 and earlier cases. No notice is required to the other joint tenants. The severance converts the joint tenancy into a tenancy in common, eliminating the right of survivorship.
Does joint tenancy avoid probate in Ontario?
Yes, for the jointly held asset. The right of survivorship causes the deceased’s interest to extinguish at death, so the asset never forms part of the estate. The Estate Administration Tax (approximately 1.5 percent on estates over $50,000) is not payable on jointly held property. However, this does not avoid income tax on any capital gain triggered at death, which is calculated separately under the Income Tax Act.
What happens to a joint tenancy in a matrimonial home when a spouse dies?
If both spouses are the joint tenants, the surviving spouse takes the entire home by right of survivorship. If the deceased spouse held the home as a joint tenant with a third party (not the other spouse), section 26(1) of the Family Law Act deems the joint tenancy severed immediately before death. The deceased spouse’s share then passes to the estate and is subject to the surviving spouse’s equalization claim.
Can my will override a right of survivorship in a joint tenancy?
No. The right of survivorship operates automatically at death and is not affected by a will. If you want your share of a jointly held property to pass under your will, you must sever the joint tenancy during your lifetime. Once you die, severance is no longer possible because survivorship has already vested.
The information provided above is of a general nature and should not be considered legal advice. Every transaction or circumstance is unique, and obtaining specific legal advice is necessary to address your particular requirements. Therefore, if you have any legal questions, it is recommended that you consult with a lawyer.
