Joint Tenancy or Tenants in Common? How to Hold Title in BC

When two or more people buy a home together, you decide how you will own it, and the transfer records it. In BC the choice is joint tenancy or tenancy in common, and it decides what happens to each owner's interest when one of you dies. Here is how each one works and what to think about before you sign.

The short version

Joint tenancy: the survivor keeps the home

Joint tenants don't hold separate shares. Together they own the whole property, with what is called a right of survivorship. When one owner dies, their interest passes to the surviving owner or owners, not to the people named in their will.

• No grant needed for the home. The survivor can apply to the Land Title and Survey Authority (LTSA) with the original death certificate to have the name removed. Most people can now do this online with the BC Services Card app, and some need to file by mail.
• No property transfer tax. The transfer to the survivor is exempt.
• Outside the estate. Because the home passes by survivorship, it isn't counted when probate fees are worked out.

Joint tenancy has to be stated on the transfer and will show on the title. If it isn't stated, you are not joint tenants.

Tenancy in common: each owner has a share

Tenants in common each own a separate, undivided share of the property. Shares don't have to be equal. If you agree that one buyer will own 60%, for example because they put in more of the down payment, the transfer can set out those shares. If the shares aren't stated, BC's Property Law Act presumes they are equal.

When a tenant in common dies, their share goes through their estate, under their will or, without one, under BC's rules for people who die without a will. The other owners keep their own shares but don't automatically receive the deceased owner's share. That usually means the estate needs a court grant (probate, or administration if there is no will), and probate fees are charged on the value of that share.

Which one suits you?

• Spouses and partners often choose joint tenancy, so the home passes straight to the survivor.
• Blended families sometimes prefer tenancy in common, so each partner can leave their share to their own children through their will.
• Unequal contributions fit tenancy in common, with the shares written on the transfer.
• Friends, siblings and investors often choose tenancy in common, so each owner can leave their share under their own will.

Whichever you choose, a written co-ownership agreement is worth considering when you are not spouses. It can cover who pays what, what happens if one owner wants to sell, and how a buyout would work.

Probate fees in BC

Probate fees are charged on the value of the estate that passes to the executor or administrator:

• No fee on the first $25,000
• $6 for every $1,000, or part of $1,000, from $25,000 to $50,000
• $14 for every $1,000, or part of $1,000, over $50,000

An estate worth $1,000,000 would pay $150 plus $13,300, or $13,450, plus a $200 court filing fee. A home held in joint tenancy passes to the survivor, so it isn't part of that value.

Adding someone to title later

Some parents add an adult child to title to keep the home out of their estate. A few things to weigh first:

• Property transfer tax. Tax is charged on the share transferred unless an exemption applies. The Province's exemption for transferring a principal residence to a related individual can apply, with conditions.
• Ownership questions. In Pecore v. Pecore (2007), the Supreme Court of Canada held that when a parent transfers property to an adult child for nothing, the law presumes the child holds it for the parent, unless the child can show a gift was intended. Clear documents matter.
• Other risks. The child's creditors or a separating spouse may be able to make a claim, you give up some control, and there can be tax consequences.

Spouses and family property

How you hold title doesn't decide what happens if spouses separate. Under BC's Family Law Act, family property is generally shared equally no matter whose name it is in. A spouse includes someone married, or living in a marriage-like relationship for at least two years.

Changing how you hold title

Joint tenancy can be ended. BC's Property Law Act lets a joint tenant transfer their interest to themselves, which severs the joint tenancy and turns it into a tenancy in common. The section doesn't require the other owner's consent. Owners can also change how title is held together. A lawyer or notary prepares and registers the documents.

Not sure how your own home is held? A title search from LTSA shows it. You search by the property's nine-digit PID, which is on your property tax notice and your BC Assessment notice, not by street address.

Questions co-owners often ask me

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

Joint tenants own the whole property together, and the survivor takes the deceased owner's interest. Tenants in common each own a share, which can be unequal and passes through each owner's estate.

What happens if the transfer doesn't say how we hold title?

In BC, co-owners are tenants in common unless the transfer says otherwise, and their shares are presumed to be equal.

Does joint tenancy avoid probate in BC?

For that property, usually yes. The survivor applies to the land title office with the death certificate, and the home isn't counted when probate fees are calculated.

Can I change from joint tenancy to tenants in common?

Yes. A joint tenant can sever the joint tenancy by transferring their interest to themselves, or the owners can change it together. Get legal advice first, because it changes what happens to the home when an owner dies.

Should I add my adult child to my home's title?

It can have property transfer tax, family law, creditor and tax consequences, and the law presumes the child holds the share for you unless a gift is shown. Talk to a lawyer before you do it.

Buying with someone? See Freehold or Strata? What You Actually Own and From Offer to Keys for how the purchase fits together.

This article is general information, not legal or tax advice. Talk to your lawyer or notary before you choose how to hold title. For LTSA's overview, see information on a title.