Co-Ownership

Question 1

What are the 4 unities of joint tenancy?

Answer 1

title, time, interest, possession

Question 2

What is required to create a joint tenancy?

Answer 2

four unities (title, time, interest, possession)
AND
intention

Question 3

If the intention to create a joint tenancy is NOT clear what is presumed?

Answer 3

if it’s land - tenancy in common is presumed (from statute)
if it’s other property - then joint tenancy (common law)

Question 4

What is the difference between a joint tenancy and a tenancy in common?

Answer 4

Joint tenancy
- 4 unities required
- the co-owners are treated as ‘one-person’
- the right of survivorship applies - if one dies, the interest passes to the other co-owner(s)

Tenancy in Common (preferred by equity/statute)
- only need a right to possession
- owners can hold different interests
- no survivorship rights

Question 5

Today, what is generally preferred for real property? for personal property?
joint tenants or tenants in common?

Answer 5

Real property
It is now presumed that a tenancy in common has been created unless the instrument clearly states otherwise
you need to be VERY clear about creating a joint tenancy

Personal property
traditional common law rules apply
joint tenancy is presumed and tenants in common occurs in equity

Question 6

What is severance?

Answer 6

The process by which a joint tenancy is converted into a tenancy in common

Question 7

Why is severance important?

Answer 7

when the joint tenancy is converted to a tenancy in common it brings an end to the right of survivorship

Question 8

What are 3 ways to sever a joint tenancy?

Answer 8

any act that destroys one of the 4 unities can convert joint tenancy into a tenancy in common

1) an act of either party operating on his share (severs at common law AND equity)
2) mutual agreement (severs equity only)
3) any course of dealing (severs equity only)

Question 9

name 4 acts that also sever a joint tenancy in equity?
UNCLEAR THAT WE NEED TO KNOW THIS

Answer 9

1) money is advanced on a mortgage
2) purchase price is provided in unequal shares
3) property belongs to a business partnership
4) possession of a jointly-owned property is shared by individuals pursuing separate commercial interests

Question 10

What rights in matrimonial property law does a spouse have if a will leaves property to a third person?

Answer 10

the spouse can override the will to get at least what they would have gotten on divorce

Question 11

What actions can be brought by one co-owner against another?

Answer 11

Action for waste - available if one co-owner damaged the land in a malicious, destructive, or otherwise peculiar way

Action of ouster - available if one co-owner seeks to exclude the other from the land

Action for account available in equity only - one co-owner claims the other owes them money

Question 12

When is an action for waste available?

Answer 12

When one co-owner has damaged the land
injunctions against waste are only granted if the waste is malicious, destructive, or otherwise peculiar (leaves the land unusable)

Question 13

When is an action of ouster available?

Answer 13

When one co-owner seeks to exclude the other from the land
requires denial of the co-owner’s rights

Question 14

When is an action of ouster available?

Answer 14

When one co-owner seeks to exclude the other from the land
requires denial of the co-owner’s rights

Question 15

When is an action for account available?

Answer 15

Available in Equity only
When one co-owner claims the other has received more than their fare share

available in Ontario through the Courts of Justice Act
outside of this, a co-owner can only recover money from another co-owner through a mutual agreement

Question 16

A co-ownership can be terminated through which two actions in relation to the land in common law? in equity?

Answer 16

Common law: partition or sale
Equity: partition only

Partition - the land is physically divided between the co-owners so that each is a separate ad individual owner of their parcel of land

Sale - land is sold by court order and the proceeds are split

Question 17

Today, what do the Courts consider when deciding between partition or sale of land?

Answer 17

Partition or sale are now generally available in Canada through provincial legislation
Courts determine whether the sale or the partition would be more advantageous to the parties (they do not favour one interest over another)

Question 18

When a joint tenancy is terminated by a court order for partition or sale, what does the court take into account to do complete equity between the parties?

Answer 18

Take into account whether one tenant spent more on upkeep, repairs, improvements, other encumbrances than the other and divide the property accordingly

Question 19

Importance of Burgess v Rawnsley?

Answer 19

(upstairs/downstairs flat - daughter suing for inheritance)
This is a classic severance case arguing about whether joint tenancy was or was not severed and whether the right of survivorship applies

Question 20

Importance of Robichaud v Watson?

Answer 20

(joint tenants, one dies, violence towards her children)
illustrates what constitutes a ‘course of dealing’ sufficient to sever a joint tenancy

Question 21

Importance of Hansen v Hansen?

Answer 21

(in process of dividing estate when one dies)
illustrates that the court can look to the co-owner’s entire course of conduct to determine whether the course of dealing was sufficient to sever the joint tenancy

Question 22

Importance of Schobelt v Barber?

Answer 22

(one murders the other)
argument about whether the right of survivorship should be allowed to operate when one co-owner murdered the other

In this case, the right of survivorship WAS allowed to operate, making the murderer the sole owner, BUT the victim’s share of the property was held in trust for the victim’s heirs

Question 23

Importance of M v H?

Answer 23

(sharing cottage)
by not allowing one co-owner to access the cottage, the other co-owner had ousted her. Court ordered use on alternate weekends

Question 24

Importance of Reid v Reid?

Answer 24

(sharing farm)
unless there is an agreement between the co-owners, the co-owner not in possession cannot bring an action for account against the co-owner still in possession for profits created on the land by the possessor’s work

Question 25

Importance of Dibattista v Menecola?

Answer 25

(mississauga land)
Sale of the land can only be ordered if it is more advantageous to BOTH parties over a partition

Question 26

Importance of Mastron v Cotton?

Answer 26

(sharing of house after divorce)
When joint tenancy is terminated by a court order for partition or sale, the court may make all just allowances to do complete equity between the parties