The Law with MAX Co-ownership – Family Land : The Survivor Takes It All (Sometimes)

Maxron Holder –
Attorney-at-Law and Lecturer in Law

A client came in last week for a consultation, clearly confused and upset. His mother had recently passed away, and she had been a co-owner of a property with her husband, who was not his father. Before her death, she prepared a will attempting to give her share of the property to him and his siblings. However, the paperwork revealed a different story – the will alone could not transfer her share. That’s when the situation got complicated.

When it comes to owning property with others, two common arrangements deteremine what happens when one co-owner dies : joint tenancy and tenancy in common. While both allow multiple people to share ownership, the rights attached to each are very different.

Here’s what you need to know:
1. Joint Tenancy – In a joint tenancy, all co-owners hold equal shares of the property, with a key feature known as the Right of Survivorship. This means that if one owner passes away, their share automatically transfers to the surviving co-owners, bypassing the deceased’s will or estate.

2. Tenancy in Common – Unlike joint tenancy, tenancy in common allows for unequal ownership shares, meaning each co-owner can own a different percentage of the property. Importantly, there is no Right of Survivorship in tenancy in common. When a co-owner dies, their share of the property is transferred according to their will or estate plan, not automatically to the other owners.

3. When you co-own property, you cannot point to a particular party of the property and claim it as yours alone, nor can you prevent another co-owner from entering or using the property. Additionally, any rents, profits, or benefits derived from the property must be shared among all co-owners according to their respective shares.

4. Joint tenancy can be severed if one co-owner decides to sell or transfer their share to another person, converting the ownership into a tenancy in common. On the other hand, tenancy in common does not require consent from the other co-owners for one to sell their share.

5. Co-owners may also voluntarily end co-ownership by dividing the property into separate parcels, a process called partition. Where co-owners cannot agree, the law allows one co-owner to compel partition, or, where impractical, a sale of the property with proceeds divided.

6. You may be wondering how to determine if you have a joint tenancy or a tenancy in common. Check your deed—if it is silent on how the land is owned, you are most likely dealing with a joint tenancy.

It’s always wise to consult a legal professional before making decisions regarding property ownership to ensure you choose the best arrangement for your specific needs.