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Feb
01
2025
Sever (2)
In our June 2012 newsletter, we discussed how a joint tenancy could be severed. The usual way is for one party to deal with that party’s share (e.g. selling or encumbering it). However, even if the joint tenancy is severed, sometimes the actual result of the severance is not apparent.
A joint tenancy can be created by way of a transfer from an owner to the owner and another as joint tenants. Often, an owner decides to do this to avoid probate tax – with the understanding that the owner has full control over, and all monetary benefits of, the transferred property until the owner’s death. This is a dangerous game. Execution creditors of the new joint tenant can be waiting in the wings and pounce. The owner can have a change of mind. The new joint tenant can start to assert ownership rights. The exact nature of a joint tenancy and a severance under these circumstances was discussed in Nigel v. Rosenberg, a 2024 Ontario Court of Appeal decision.
Continue Reading >Feb
01
2025
Severance (2)
In our August 2011 newsletter, we discussed the severance of a joint tenancy and stated:
“Two or more people may own property together in one of two ways: as joint tenants or as tenants in common. On death, the interest of one joint tenant passes to the other joint tenant whereas the interest of a tenant in common passes to that person’s heirs in the normal course. Joint tenants acting together may, if they wish, choose to convert (or sever) a joint tenancy to a tenancy in common. Indeed, one joint tenant can unilaterally sever a joint tenancy. Is there ever a circumstance in which a third party can sever a joint tenancy?”
The answer to the last question was yes. If a creditor moves to have a joint tenant’s interest sold under a writ of seizure and sale and the sheriff advertises the property for sale, that is sufficient to sever the joint tenancy.
What happens when a joint tenant applies for an order taking back a full interest in the property, but, in the meantime, a creditor has filed a writ of seizure and sale against the other joint tenant. This situation arose in Brunton v. Lanzarotta, a 2024 decision of the Ontario Superior Court of Justice.
