Lecture 8 and 9: Concurrent Interests, Severance of Joint Tenancy

Question 1

Generally, what is a concurrent interest?

Is it only for personal property or real property?

Answer 1

More than one person having an interest in the same property at the same time.

Ownership of shared property can be personal property, or real property.

Question 2

What are the four types of concurrent interests?

Which of the four exist?

Answer 2

Tenancy in common
Joint tenancy
Tenancy by the entireties
Co-parcenary

Co percent and tenancy be the entireties no longer exist.

Question 3

I buy a hunting cabin and I say “we are going to buy it and share it, but in the legal sense you own the cabin I own the land”

Is this a valid joint tenancy?

Answer 3

No.

Question 4

What is a joint tenancy?

What are the two core parts that are in every joint tenancy?

Answer 4

Fundamental concept is that two or more people together own the same interest.

1) The four unities

2) The right of survivorship

Question 5

What are the four unities for joint tenancy?

Do you need all four?

Answer 5

1) Possession: This refers to the fact that each joint tenant is entitled concurrently at the same time with the other joint tenants to possession of the whole of the property that is subject to the joint tenancy. All people have the same right of possession to the entire property.

2) Interest: This requires that the interest of each joint tenant be the same in terms of extent, nature, duration of the joint tenancy.

3) Title: Each joint tenant’s title must be derived from the same document, transfer, or transaction.

4) Time: Each joint tenant’s interest must take place/start at the same time.

Need all four for a joint tenancy

Question 6

What is the right of survivorship for joint tenancy?

Can you provide an example?

If you try and bypass the right of survivorship and put it in your will to give to someone else, can you do this?

What is it called when you convert a joint tenancy into a tenancy in common?

Answer 6

This is the right of the surviving joint tenant to take the interest of a pre-deceasing joint tenant.

In other words, 2 joint tenants, 1 die, the one left standing by the right of survivorship gets the others interest.

Cannot do this in a joint tenancy unless you change it first to a tenancy in common

Severance.

Question 7

What is a tenancy in common?

How is a tenancy in common different then a joint tenancy (two main ways)

Answer 7

Legal arrangement where owners share ownership of land.

Differs from a joint tenancy in two main ways.

The only unity required is the unity of possession. Unlike joint tenants, tenancy in common have distinct separate interests. There is no reason why they need to have unity of interests, title or time. They must have equal rights of possession over the entire property.

No right of survivorship for tenancy in common. When one tenant in common dies, their interest to the property does not pass to the surviving tenants in common, but instead forms part of that deceased persons estate and passes on in accordance with their will (or rules of intestacy)

Question 8

What is the common law presumption for joint tenancies and tenancies in common?

Has this changed?

Answer 8

There was a presumption of joint tenancy rather than tenancy in common.

This has changed to a presumption of a tenancy in common.

Question 9

Using the old presumption there was a joint tenancy, what three circumstances will a court take in equity a presumption of a tenancy in common?

Answer 9

1. Where two or more persons advanced money on a mortgage. It is presumed in equity that their title as mortgagees is held in tenancy in common.
2. It is a well-accepted view that partnership property is presumed in equity to be held by partners as tenants in common.
3. Where the purchase price of the property is provided unequally.

Question 10

How do you determine if a will is giving a joint tenancy or a tenancy in common?

Answer 10

Intent using the words they included. If the will is silent on this, the old default rule of joint tenancy applies.

Question 11

What are words of severance?

What are the two ways words of severance are used?

Answer 11

Words that indicate a presumption of a tenancy in common. Words such as “equally, equally amongst them”

1. In determining whether a joint tenancy or tenancy in common has been created, words of severance are taken to imply a tenancy in common.
2. The other way the word severance is used is referring to the transformation of an existing joint tenancy into a tenancy in common. Not be confused with a severance of a parcel of land.

Question 12

McEwan v Ewers and Ferguson

Facts: McEwan died and left a life estate for two lots to his wife Helen. He devised the remainder interest (after Helen died) for the two lots. 1 lot to the son, the other lot for his two daughters to have together. He intended for the daughters to have concurrent interest in the second lot. One of the sisters died, and a dispute arose to claim what happened to the interest.

Issue: Is this a joint tenancy or a tenancy in common for the two sisters?

1) What would happen if the sisters were in a joint tenancy

2) What about a tenancy in common

3) What was the common law presumption at the time?

4) The case issued the words “jointly, shared,” what did the court say these were words of?

Answer 12

If the two sisters were joint tenants, the other sister would get it through the right of survivorship.

If they were tenants in common, no right of survivorship and goes to her estate.

There were specific words up for interpretation. The judge noted under the common law, it was likely be interpreted as a joint tenancy

Court says unless an intention sufficiently appears in the will, it must be interpreted as tenants in common and not as joint tenants but in the will of the father it used the word jointly. But the court held the word jointly cannot be used only by itself. The court held the context shows more then just the word jointly, and he held that there is no intent to have a joint tenancy, and the idea of equal share shows clear intention of a tenancy in common

Case law shows where the words jointly, shared or equally is used, the courts have held tenancy in common. (these are words of severance)

Jointly does indicate a joint tenantncy but the other words equate to a tenancy in common.

THUS tenancy in common.

Question 13

When is it preferable to have a joint tenancy versus a tenancy in common?

Answer 13

If you want to pass it on only to family, you may want to do a joint tenancy. if it is with strangers, you would want a tenancy in common

Question 14

Winchester v McCullough

Facts: There was a will and it was stated that the residue of the estate was to be given to three children jointly in equal shares. The will also state if any of the three kids died before their mother, the residue would be the property of that child’s successor.

Issue: Joint tenancy or tenancy in common?

1) The word “jointly” was used” but also the word “share” was used. What does jointly typically indicate? What does the word “share” mean typically?

2) The word “passing it to a successor” is an intention of what? Why?

3) If they used the word “survivor” what would this indicate?

Answer 14

Holding:

The court said the will created a tenancy in common.

Even if the word jointly was used, the word share was used and this is a word of severance.

Plus, the word passing it to successor is clear intention of a tenancy in common.

Court stated that if the divisor intended a joint tenancy, they would have used the word survivor instead of successor.

2) It was a tenancy in common, as in a joint tenancy you cant give it to a successor.

3) Joint tenancy due to the right of survivorship

Question 15

Is the presumption of a joint tenancy rebutted?

What act rebutted this?

Answer 15

Yes this was reversed, now there is a presumption of a tenancy in common

The conveyancing and law of property act

Question 16

What happens if both joint tenants die together?

What statute covers this?

Answer 16

This is covered in statute.

The Ontario Success law reform act

Unless a contrary intention appears, where two or more joint tenants die at the same time, or in circumstances rendering it uncertain to the order of death, each person is deemed to have held as tenants in common

(Basically it switches to a tenancy in common)

Question 17

Can a corporation be a joint tenant?

If so, what happens if that corporation dissolves?

Answer 17

Yes

If so, the right of survivorship still applies and the property goes to the other individual in the joint tenancy.

Question 18

Can you sever a joint tenancy?

Answer 18

Yes, as a joint tenant you can sever your joint tenancy by severing it.

Question 19

What four unities are needed for a joint tenancy?

Explain each?

What about a tenancy in common?

How are their interests different in regards to a joint tenant and a tenancy in common? (What land do they get)

Answer 19

Joint Tenancy needs

1) Possession: This refers to the fact that each joint tenant is entitled concurrently/at the same time with the other joint tenants to possession of the whole of the property that is subject to the joint tenancy. All people have the same right of possession to the entire property.

2) Interest: This requires that the interest of each joint tenant be the same in terms of extent, nature, duration of the joint tenancy.

3) Title: Each joint tenant’s title must be derived from the same document, transfer, or transaction.

4) Time: Each joint tenant’s interest must take place/start at the same time.

Tenancy in common
1) Possession

Joint tenant: Gets a unified interest in the whole

Tenancy in common: Gets an undivided fractional share of the whole.

Question 20

Can a tenant in common sell off their share?

Answer 20

No. Every tenant in common is entitled to possession of the whole, you cannot just sell off the share

Question 21

What is a severance of joint tenancy?

Does it get rid of the right of survivorship?

What unity must remain?

Answer 21

Any act that destroys these unities gets rid of the joint tenancy and creates a tenancy in common

Yes it does

Unity of possession

Question 22

What happens if a joint tenant puts there property interest in their will?

Answer 22

Wouldn’t stand, right of survivorship would still apply

Question 23

What are the three ways a joint tenancy can be severed?

Do you need consent to do so?

Answer 23

A joint tenancy can be severed in one of three ways

1. By Unilateral act by one joint tenant

A joint tenant is free to deal with their property/interest as any other owner and can deal with in a way that destroys one of the unities that would sever the joint tenancy.

2. By Mutual agreement
3. Or by actions that demonstrate mutual intention to treat ownership as tenancy in common

A joint tenancy can be converted into a tenancy in common by any joint tenant and can be done so unilaterally. The consent by the others is not required.

Question 24

A couple breaking up. Is this enough to claim the severance of a joint tenancy?

Answer 24

No. It is important to know the severance of a joint tenancy by clear and unequivocal action to sever the joint tenancy. A couple breaking up is not enough.

Question 25

What is the best way to make sure your joint tenancy is severed?

Answer 25

By changing the deed, documenting that you severed it and registering it as a tenancy in common to get rid of the right of survivorship.

Question 26

What again is the one unity you have regardless if you are joint tenant or tenancy in common?

Answer 26

unity of posession

Question 27

Hypothetical:

What happens if four siblings were given a farm as a joint tenant but only one stays and takes care of the land while the other leaves?

What are the three situations that you are entitled to this?

Answer 27

Occupation rent is the solution where the owner in possession has to pay occupation rent to the other co-owners in these 3 situations.

1 Where the co-owner in possession has excluded the other-that is, has effected an “ouster” of other co-owners.

2 Where the co-owners have made an agreement respecting occupation and occupation rent (co-owners are thus permitted to structure their relationship by contract); and

3 Where the circumstances require that the co-owner in possession be regarded as an “agent” for the other co-owners.

Question 28

What is the statute of Anne 1705?

What was the main point?

Answer 28

It structured obligations and rules.

It provided that a co-owner was required to account for benefits received as a co-owner from third parties but not for benefits that a co-owner achieved through the co-owners own efforts.

Question 29

Case of Fray v Evans

Facts: Couple were tenants in common with the wife holding 90% interest and husband 10% interest. Wife died without a will. Gave interest to her 2 sons and the husband. He lived in the house for years paying taxes and mortgages but not occupation rent.

Issue: What are the parties entitled to?

Future Phil: This case helps explain occupation rent more then anything.

Answer 29

Holding:

Court held the husbands claim to get money back for mortgages+taxes was offset because he never paid occupation rent to the other sons.

Divided in three ways

Question 30

Henderson v Eason

Facts: 3 people owned a farm, two left while one stayed. He profited from land. Assume he did everything to get that profit

Issue: Does he have to share the profits from the land?

Answer 30

Holding:

Not required to share profits as he did everything.

Question 31

When co owners do not want to hold land together what will they seek? (how can they divide it up then?)

Answer 31

Partition or sale

Question 32

True or false:

While an owner can take unilateral action to end a joint tenancy, no co-owner can take action unilateral regarding the physical property itself.

Answer 32

True. You can change it from a joint tenancy to a tenancy in common, but you cannot actually get rid of any physical property unless you seek a court declaration

Question 33

What is the Partition Act of Ontario?

What are the two things they can grant?

What is typically the solution? When will they order one over the other and vice versa?

Answer 33

If there is a disagreement regarding the ending of a joint tenancy/tenancy in common you go this act

Partition of the land (dividing it up and creating two separate interests) or selling it.

Typically partition. For example, it is easy to partition a block of land. However, if it is a house for example, you cannot partition it easily and thus usually a sale.

Question 34

Under the Partition Act of Ontario, what three factors do courts typically look at to determine whether they should order a sale/ partition of the property?

Answer 34

Courts look at the following factors to determine whether sale or partition.

1. That a co-owner has prima facie right to partition or sale
2. The other owner has an obligation to allow a partition or sale.
3. The court should grant the partition or sale unless there is a valid reason why this order should not be made.

Question 35

Under the Partition Act of Ontario, what are three reasons a court may refuse a partition or sale?

Answer 35

Some ways to refuse a partition or sale.

1. Where the application has behaved in a malicious way towards the respondent
2. If there is hardship (financial hardship) to the co-owner resisting the application which would amount to oppression
3. The discretion to order a partition or sale is must broader in family law cases but in commercial matters courts are more hesitant to resist a application for a partition or sale

Question 36

Cook v Johnston

Facts: Court in previous proceeding ordered a partition of a property in joint ownership. Appeal to argue it should have been a sale.

Issue: Should it be a sale or partition

General principle about sale v partition.

Answer 36

Holding:

Court held sale is usually used when it is more beneficial to both parties. in this case, it was better for a partition.

Question 37

Katal v Khurshid 2017

Facts: Old couple and daughter lived together. Daughter lived with them to take care of them and help their mortgage while the parents paid for majority of everything. Court held they were joint tenants.

Parents brought a partition or sale because they had health issues, Daughter opposed application because she needed somewhere to stay

Issue: Can she get a partition or sale?

Just memorize (Prima Facie xxxx)

Answer 37

Holding:

Court held there is a prima facie entitlement to partition or sale, so that a person opposing such action has the onus of explaining why it’s not fair.

Question 38

Knowlton v Bartlett

Facts: Wife secretly executed a deed severing a joint tenancy with husband (created tenancy in common) and left her one-half interest to her brother. Brother now wanted to partition or sale the property

Issue: Should the court partition or sell the house?

Answer 38

Holding:

Court agreed the wife did sever the joint tenancy, but refused to partition or sell the house as it was not appropriate to do so and would cause undue hardship on the other person.

If it creates under hardship, court will likely not order sale or partition of property.