Joint Tenancy vs. Tenancy in Common in Ontario: How Co-Owners Should Hold Title

What the Two Forms of Co-Ownership Actually Are

In my years as a broker, the line on the transfer documents that gets the least attention before closing – and causes the most heartache afterward – is how co-owners take title. Buyers spend months agonizing over price and neighbourhood, then sign the ownership election in thirty seconds. In Ontario there are two basic forms: joint tenancy and tenancy in common, and they behave very differently the moment something changes – a death, a divorce, a falling-out between partners.

Joint tenancy depends on the four unities: possession, interest, title, and time. Each owner must hold an equal interest, derived from the same document, acquired at the same time, with each entitled to possess the whole property. The legal fiction is that the co-owners together own one undivided whole – no one holds a separate “piece.” If any one of those four unities is broken, the joint tenancy is automatically severed and becomes a tenancy in common.

Tenancy in common is far more flexible. Shares can be unequal – if you put in 70% and a partner puts in 30%, title can reflect a 70/30 split – and each owner holds a separate, quantifiable interest they can sell, mortgage, gift, or leave by will independently of the others. One important point that surprises people: a tenancy in common does not mean the property is physically divided. All co-owners still share possession of the whole home; what’s divided is the ownership interest on paper, not the kitchen.

The shorthand: joint tenancy says “we are one”; tenancy in common says “each of us owns a defined share.”

The Right of Survivorship: Who Gets the Home on Death

This is the difference that matters most to families, and the one most people don’t understand until it’s too late. The technical term is the right of survivorship, and it only attaches to joint tenancy.

• Joint tenancy: when one owner dies, they simply drop off title and the property passes automatically to the surviving owner(s). The interest does not “transfer” so much as the deceased ceases to be an owner, leaving the survivor as the continuing owner of the whole. Because it never enters the estate, it overrides the will – even if the deceased’s will leaves “their” share to someone else, survivorship wins.
• Tenancy in common: no right of survivorship. The deceased’s share falls into their estate and passes under their will, or under Ontario’s intestacy rules if there is no will. Heirs receive that share – not the whole home – and they may end up co-owning with the surviving original owners, which is exactly why a clear will and a co-ownership agreement matter.

So “I want the home to go 100% to my spouse” and “I want my share to go to my children from a previous marriage” are opposite title strategies. Pick the wrong one and no will, however well drafted, can fix it – because under joint tenancy the will never gets a say over that property in the first place. This is the single point I most want co-buyers to slow down on.

The Probate Math Can Be Real Money

Ontario’s probate fee is formally the Estate Administration Tax. According to the Government of Ontario (ontario.ca), as of January 1, 2020 the first $50,000 of estate value is exempt, and the value above $50,000 is taxed at $15 per $1,000 (1.5%). There is no upper cap, so the bill scales with the size of the estate.

Here’s the connection to title: because a jointly held property passes by survivorship outside the estate, it generally is not counted in the estate value subject to the Estate Administration Tax. A share held as tenancy in common does fall into the deceased’s estate and may be taxed. On a GTA home, where values routinely run well into seven figures, that spread is not trivial – this is precisely why “add my child to title to avoid probate” became popular advice.

But minimizing probate should never be the only reason to pick a form of title. Saving on probate also means giving up control over where your share goes, and – as the next section shows – it can expose the home to a co-owner’s creditors or divorce. The tax tail should not wag the estate-planning dog.

Severing a Joint Tenancy: Converting to Tenancy in Common

Joint tenancy is not permanent, and an important consequence follows: a joint tenant can sever the tenancy without the consent – or even the knowledge – of the other owner. That cuts both ways. It’s a useful escape hatch if a relationship sours, but it also means survivorship is never as bulletproof as people assume. In Hansen Estate v. Hansen (2012 ONCA 112), the Ontario Court of Appeal restated the three ways to sever:

1. Acting unilaterally on one’s own share – for example, selling or encumbering it, which breaks the unity of interest and converts the holding to tenancy in common.
2. Mutual agreement between the co-owners to sever.
3. A course of dealing sufficient to show the owners mutually treated their interests as a tenancy in common – a classic example being separating spouses dividing assets, even without a formal agreement.

In practice, the safest route is to register the severance on title in the Land Titles system. Severance claimed only by conduct is hard to prove and often ends up in litigation after a death, when the person who could explain the intention is gone. If your circumstances are changing – divorce, remarriage, a shifting business partnership – don’t wait and don’t rely on informal understandings; have a lawyer put it on title while everyone is still able to confirm what was meant.

There is no “better” form, only the one that fits your goal. Common scenarios:

• Spouses / common-law partners: most choose joint tenancy so the survivor takes the home automatically and bypasses probate. But blended families – or anyone wanting to leave a share to children from a prior relationship – often should choose tenancy in common instead.
• Parent + adult child: often used as a probate-avoidance tool, but adding a child as a joint tenant carries real risk – the child’s creditors or divorcing spouse may reach the home, and it can create tax issues. Get legal and accounting advice before doing this.
• Friends pooling funds: almost always tenancy in common, with shares registered by contribution and a co-ownership agreement spelling out the exit terms.
• Investors: tenancy in common lets each owner plan the succession and transfer of their own share, which can be left to a chosen beneficiary or sold to a third party without unwinding the whole arrangement – useful when partners may want different exit timelines.

In Ontario the form is recorded in the Land Titles system – your lawyer notes “joint tenants” or “tenants in common” (and the share percentages, if applicable) on the transfer document that gets registered against the property. It becomes part of the public record of ownership. Decide this before closing, not on the spot at the lawyer’s office, because changing it later means a fresh transfer or a registered severance – more cost, and sometimes tax consequences. The five minutes you spend on this question at the offer stage can save your family a great deal later.

If we hold our home as joint tenants, does the survivor need probate when one of us dies?

Usually not for that property. Under joint tenancy the home passes to the survivor automatically by right of survivorship, stays out of the deceased's estate, and is generally not counted toward Ontario's Estate Administration Tax. The survivor files documents (such as proof of death) with Land Titles to update title. Confirm the steps with a lawyer.

Can I use my will to leave a joint-tenancy home to someone other than my co-owner?

No. The right of survivorship overrides the will – on death, the deceased's interest passes automatically to the surviving joint tenant, and any contrary instruction in the will has no effect on that property. To keep control over where your share goes, hold title as tenants in common and direct it in your will.

Can tenants in common own unequal shares, like 70% / 30%?

Yes. That flexibility is the main advantage over joint tenancy: shares can be registered in any proportion reflecting contribution or agreement, and recorded on title in the Land Titles system. It's wise to also sign a co-ownership agreement setting out each party's rights and an exit mechanism.

Is putting an adult child on title as a joint tenant a good way to save probate?

It can bypass probate, but it carries real risk: the child's creditors or a divorcing spouse may reach the home, and it can trigger tax and "gift vs. holding in trust" disputes. The trade-offs are complex – get legal and accounting advice first rather than acting just to save tax.

We already hold title as joint tenants – can we change to tenancy in common?

Yes. Ontario allows severance without the other owner's consent – through a unilateral act on one's share, mutual agreement, or a course of dealing. The safest method is to register the severance on title in Land Titles, since severance by conduct alone is hard to prove. If your circumstances change, see a lawyer early.