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Monday, October 26, 2020

Will it cause problems if the title to the property doesn't accurately show tenants-in-common?

Have you looked at your land registration documents to see if they are accurate? Even if the transaction was done by a lawyer, it's worth it to take a minute to check to see that all is as you expected. The following question was sent to me by a reader who checked his title and discovered that the information on it might not be correct:

"Would the land titles state tenants in common? I have two properties with my brother and his wife. One title states that my brother and his wife as joint tenants but it does not say that I am a tenant in common. Should it say that and will this cause any issues?"

Should your document say that you're a tenant in common? That depends. Are you supposed to be a tenant in common? Is that the way all parties understand the ownership arrangement? It sounds to me as if you are supposed to own one half of the property on your own, while your brother and his wife are joint owners of the other half. This should be very clear from the wording on the document.

Will it cause issues? If it is incorrect, then yes, it probably will. Any document that does not accurately describe the legal situation of the parties can potentially cause issues. After all, the point of the document is to set out everyone's position and rights and give everyone something to rely on in case of problems. By reading, signing, and holding onto those documents without making any changes, you are indicating that you accept their contents. I would certainly advise my own clients to ensure that any land titles documents accurately reflect the real ownership situation. 

When there are multiple owners on a title and there is no mention of tenancy in common, it can be assumed that the parties own the property as joint owners. There is a HUGE difference in these two ways of owning property. Tenants in common each own a defined share of the property. For example, you might own 50% and your brother and his wife might own the other 50%. This means that if you want to, you can sell your 50% without anyone else's permission. Or, you can leave it to your beneficiaries in your will.

However, if you are all joint owners, the situation is very different. You do not have a defined portion. You cannot sell or mortgage (or really do much of anything) without the written cooperation of the other owners. And joint ownership comes with a right of survivorship. In other words, if you die, there is nothing for you to leave to anyone because your brother and his wife would automatically take ownership by right of survivorship.

When I have this sort of discussion with clients, some try to argue the point with me (Why? Honestly, it isn't a good idea. Not when it's about estate matters.) They tell me things like they've paid half the bills and they paid for the driveway or the septic tank, or some other improvements. They seem to believe that the payment of bills will somehow change the meaning of the title deed. However, the title to the property doesn't say anything about who paid for what. That is a completely separate issue and relying on facts like those would mean your executor or family members going in front of a judge and asking for help based on unjust enrichment or mistake. That's the long, expensive, frustrating way of managing things.

These differences should point out to you that the description on the deed is very important. I suggest that you discuss the documents with a lawyer who is local to you. If the description on the deed* does not match your understanding of the legal ownership arrangement, get together with your brother and his wife and sort it out. It won't cost much to get it right compared to having a trial about it after you pass away.

*Just a side note to readers who live in Newfoundland and Labrador, where we don't actually get title deeds from our Registry: since there is no deed, look at the Indenture or transfer document by which you obtained the property. It should name the purchasers and clearly state whether they are intended to be joint owners or tenants in common with specific portions.

1 comment:

  1. Lynne,
    I am the Executor and have control re the disposal of a property ie parents home via the Will . One sneaky lawyer tried to pull a fast one and wanted me to go along with his suggestion and put the property in both our names (only 2 beneficiaries). That would have altered my position greatly.  That was done for the benefit of the opposing lawyer and his client. Oh the games people play, including some Lawyers.TBC.



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