Joint Tenancy vs Tenancy in Common

SWL-25288-18 (Re), 2019 CanLII 86897 (ON LTB)

10. In a joint tenancy, there is a single tenancy agreement and the tenants are jointly and severally (individually) liable for the payment of the entire rent for the rental unit. By contrast, in the case of a tenancy-in-common, although there may be a single tenancy agreement document and while all the tenants may occupy the same premises, each tenant-in-common has a separate tenancy with the landlord. Each tenant in common is individually responsible for the payment of his or her share of the rent for the rental unit.

11. Section 13 of the Conveyancing and Law of Property Act, R.S.O., 1990, c. C.34, provides that there is a presumption in favour of a tenancy in common “unless an intention sufficiently appears on the face of the letters patent, assurance or will that they are to take as joint tenants”. “Four unities” are required for a joint tenancy: unity of title, time, interest, and possession. In other words, the tenants must all take possession under the same tenancy agreement, they must have entered into the tenancy agreement at the same time, they must each take the same estate and each must take possession of the undivided whole of the premises (that is no joint tenant must exclude another joint tenant from any part of the property). (See: Fleming, Jack, Residential Tenancies in Ontario, 3rd ed. (Toronto: LexisNexis, 2011) at 158.) pp

SOT-68533-16-RV (Re), 2016 CanLII 44359 (ON LTB)

1. The Tenant’s application alleged that the Landlord locked the Tenant out of the rental unit and disposed of the Tenant's property while he was hospitalized.

2. While he was hospitalized, the Tenant's spouse and co-tenant provided the Landlord with notice of her intention to terminate the tenancy, which the Landlord accepted. She did not inform the Tenant of her intention. It was only upon leaving the hospital that the Tenant found out. By then, the Landlord had retaken possession of the rental unit.

3. After a contested hearing, the hearing member dismissed the Tenant's application. Central to his reasoning for doing so was a determination that the tenancy had been properly terminated by the Tenant's spouse, and that the Landlord had acted lawfully in taking possession of the rental unit.

11. Another element of the Tenant's position warrants comment. The Tenant relied on the reasons of the Court of Appeal for Ontario in Hansen Estate v. Hansen 2012 ONCA 112 in support of his position that the termination notice served by his co-tenant should only have served to convert the joint tenancy into a tenancy in common, and that he should continue as a tenant.

14. Unlike judges of the Superior Court of Justice, members of this Board do not have jurisdiction to sever tenancies. This Board is a creature of statute, and members of this Board may only exercise powers conferred on them by statute. There is no statutory authority empowering Board members to sever tenancies.

SWL-98259-17 (Re), 2017 CanLII 28732 (ON LTB)

25. In Murdoch v. Barry, (1976), 10. O.R. (2d) 626,

A joint tenancy may be severed by mutual agreement or by conduct of the joint tenants. If the joint tenants enter into a mutual agreement to hold as tenants in common, they change their interest and thus sever the joint tenancy. In order that a joint tenancy be severed by conduct, the act of the joint tenant must be such as to preclude him from claiming an interest by survivorship: Re Wilks: Child v. Bulmer, (891) 3 CH. 59; Canadian Law of Real Property – Anger and Honsburger, at p. 180.

26. In Hansen Estate v. Hansen, (2012) 2012 ONCA 112 (CanLII), O.J. No. 780 pp.

The three modes of severance referred in Williams v. Hensman have come to be known as the “three rules” see Burgess, at pp. 152-53; Robichaud v. Watson (1893), 1983 CanLII 1701 (ON SC), 42 O.R. (2d) 38 (H.C.J.), at p. 44; Bruce Ziff, Principles of Property Law, 5th ed. (Toronto: Thomson Reuters Canada Ltd., 2010), at pp. 342 and 354. The three rules may be summarized as follows:

Rule 1: unilaterally acting on one’s own share, such as selling or encumbering it;

Rule 2: a mutual agreement between the co-owners to sever the joint tenancy; and,

Rule 3: any course of dealing sufficient to intimate that the interest of all were mutually treated as constituting a tenancy in common.

Rule 3 governs cases where there is no explicit agreement between the co-owners to sever a joint tenancy. In contrast, rule 2 is engaged where a mutual agreement to sever is claimed to exist. This distinction between rule 2 and rule 3 is significant. What follows from this distinction is that the proof of intention contemplated by rule 3 does not require proof of an explicit intention, communicated by each owner to the other(s), to sever the joint tenancy. If such proof were required, then rule 3 would be rendered redundant because a communicated common intention would be tantamount to an agreement. Instead, the mutuality for the purposes of rule 3 is to be inferred from the course of dealing between the parties and does not require evidence of an agreement.

30. There was no dispute that during the course of the tenancy A.A. gave notice to vacate and intended to assign her portion of the lease agreement. The Landlord responded by offering A.A. the option to pay out her portion of the lease or to assign her portion of the lease for a fee of $500.00. At this point I find that the Landlord is now treating A.A.’s payment differently. I find that the Landlord started treating A.A. more like a tenancy in common. The Landlord is now taking the position the A.A.’s payment is separate from the whole. When the Landlord prepared the assignment document he separated out the new party’s payment, removed it from the whole and thus created a tenancy in common with A.A. In other words, while the remaining Tenants continued to have a joint and several tenancy with the Landlord, A.A.’s portion became a tenancy in common. The Landlord changed the nature of the lease agreement when he gave the Tenants the assignment document to sign with the change of terms in Schedule “A”. Although the assignment agreement with schedule A was never fully executed, the accumulative conduct of the parties removed A.A.’s interest of survivorship pursuant to Murdoch v. Barry, (1976), 10. O.R. (2d) 626 which set out “ In order that a joint tenancy be severed by conduct, the act of the joint tenant must be such as to preclude him from claiming an interest by survivorship “. Once A.A. no longer had keys for the rental unit the tenancy between A.A. and the Landlord terminated and she effectively had no interest of survivorship.