The unworkable situation that happens when a tenant-in-common owner passes away

What happens when a tenant in common passes away? There is more to it than who owns the title, particularly if the deceased owner left his share of the property to several people. It's not a very workable situation for anyone involved. A reader wrote me a note yesterday about this. His note and my response are below:

"My Mom is a tenant in common and the other owner just passed away. We don't know what the will says, but if his family is going to get his half, what are our options? Can they make us sell the house?"

The basic rule of tenancy in common is that when the owner passes away, he or she can will it to whoever he wants. There is no survivorship right for your Mom. As you've said, you haven't seen the will, and it's possible that the other owner is leaving it to your Mom.

Although that is the basic rule, there are other facts that I don't have that could have a significant impact on the situation. A critical fact that is left out here is the relationship between your Mom and the other owner. If the other owner and your Mom were married or in a common law relationship, your Mom may find that the law of her province will help her. For example, in Newfoundland and Labrador, a home that is owned by one legally married spouse (but not common law) but lived in by both of them is considered to be joint property when the owner passes away. This would override what the will says.

Another possibility that hinges on the relationship between them is that spouses and in some places common law spouses, have a right to claim against an estate if they are not left enough from the estate to adequately provide for them.

Obviously there is a possibility that the other owner was a brother or friend of your Mom and that no relationship exists that would impact the general rule of tenancy in common. If that's the case, yes his family will own his half of the title unless the will leaves it to your Mom.

I assume that your Mom lives in the home. If his family suddenly owns half of the house, there may be disagreements about who gets to live there. They may want to live there. They may want rent for their half if your Mom continues to live there. They may refuse to pay their share of property taxes or repairs or insurance. There may be arguments over who owns the contents of the house. One way or another, there is going to have to be some discussion between your Mom and the other owners to figure out what is going to happen. It's not so much that they can make your Mom sell the house, as she may find it impossible to live there.