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Saturday, January 8, 2022

Can a tenant-in-common sell his part of the property without even telling you, if you're the other owner?

What if the co-owner of your property told you one day that he's no longer a co-owner because he had transferred his share to someone else? Would you be surprised? Concerned about who the new owner might be? Can he even do that? A reader recently asked me about this. Here is her question followed by my comments:

"My boyfriend and his brother have owned their family cottage as tenants in common for about 5 or 6 years now. Today my boyfriend messaged his brother to tell him about a recent bill and ask if he would pay his half. His brother tells him he is no longer responsible and to talk to their dad who is now the new co-owner. No one talked to my boyfriend or sent him any land transfer documents or anything. He was just randomly told oh there's a new owner on the title. When my boyfriend asked for papers he was basically told he can just look it up. Here's my question: can they just do that? I know that as a co-owner the brother didn't need my boyfriend's consent but can he really just go behind his back like that and transfer the title without even saying anything? So with tenants in common you never really know who you're owning a property with? You have to check all the time and anyone can be added or removed without your knowledge? That seems really sketchy to me so pls advise?"

The short answer to your question is yes. They CAN do that. 

There isn't actually anything sketchy about it, legally. A tenants-in-common arrangement means that each person owns a defined portion of the title. In your boyfriend's case, each owned 50%. Each of them is free to sell or give away their portion or to leave it to someone in their will. In law, your boyfriend's ownership and use of the property has not been diminished.

Whether that's a considerate way to act to other family members is a different question but legally the brother and father have done nothing wrong here.

My answer would be the opposite if the owners had been joint tenants. In that arrangement, the property could not be sold or transferred by just one of the owners without the consent of the other (unless the title has been legally severed).

Sometimes tenants-in-common will sign an agreement between them that governs how the property will be used and disposed of. A recommended clause in that sort of agreement is the opportunity to buy the other one out before it's given or sold to another person. In your case, there was no agreement, but that doesn't surprise me. Family members rarely put their agreements into writing because they have an expectation that family members will treat them better than strangers would, and also because they are afraid of offending each other. Perhaps this would be a good time for your boyfriend to ask his father to come to an agreement and put it into writing.

Unfortunately, your situation is yet another reason why I always counsel parents not to leave a specific property to more than one of their children.

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