Joint Tenancy vs. Tenants in Common

Ian Keay

February 11, 2026

How to navigate co-ownership of real property.


When two or more people buy property in Ontario, they must decide how they will hold title. That choice is often made quickly during a purchase, but it has important consequences for estate planning, family law, and taxes. The two main options are joint tenancy or else tenancy in common.

 

Joint Tenancy

 

In a joint tenancy, each owner holds an equal interest in the entire property. The key feature is the right of survivorship. When one co-owner dies, their interest passes automatically to the surviving owner(s).  The deceased co-owner’s interest in the real property does not form part of the deceased’s estate and does not pass under their Will.

 

Joint tenancy is the common option for spouses. A joint tenancy simplifies matters on death because the real property transfers automatically and avoids the Estate Administration Tax (also known as “probate fees”). A joint tenancy overrides the deceased co-owner’s Will, even where they purport to deal with their co-ownership interest.  Clients must be careful that their choice of tenure aligns with broader estate planning goals or where the co-owners have contributed unequally to the purchase of the real property.

 

Tenancy in Common

 

Tenancy in common offers greater flexibility, but no survivorship. Owners can hold unequal shares, often based on how much value each person contributed toward the purchase. While each owner has a defined share, all have the right to use and occupy the entire property.

 

Without survivorship, a deceased co-owner’s share passes into their estate and is subject to their Will (or Ontario’s intestacy rules if there is no Will). This preserves control over who inherits the interest. Estate Administration Tax will almost certainly apply.

 

Tenancy in common is often appropriate where:

 

  • Owners contribute different amounts
  • Co-owners are not spouses (or do not intend to benefit their co-owner on death)
  • The property is primarily an investment
  • One co-owner wants their interest to pass to someone other than the other co-owner

 

Because co-owners may have different goals or timelines, a written co-ownership agreement is advisable. Such an agreement can address expense sharing, mortgage obligations, use of the property, and how disputes or buyouts will be handled. Without one, disagreements can lead to court proceedings under the Partition Act (Ontario), which may result in a forced sale.

 

Changing Ownership Structure

 

A joint tenancy can be converted into a tenancy in common by “severing the joint tenancy”. This can be accomplished by agreement of the co-owners. But more often than not, one co-owner takes unilateral steps to terminate the joint tenancy.

 

Moving from tenancy in common to joint tenancy requires the co-owners to agree.

 

Choosing the Right Approach

 

There is no universal solution. The right structure depends on factors such as:

 

  • Who should inherit each co-owner’s share
  • How much each co-owner is contributing
  • Estate planning and probate considerations
  • Family law implications
  • Whether a co-ownership agreement is needed
  • Long-term plans for the property

 

While these issues are best addressed at the time of purchase, ownership can be restructured later if circumstances change. Co-owning property can work well — but only if the legal structure aligns with the owners’ financial and estate planning objectives.  Careful planning at the outset can prevent unintended consequences later.

 

-      Ian Keay

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If a person has a family member who: a. receives ODSP (or might in the future) b. is or could be financially vulnerable (i.e. susceptible to influence or exploitation) c. makes poor / questionable financial decisions d. requires support then a Henson Trust may make sense in those circumstances. 7. Final Thoughts on Henson Trusts A Henson Trust is about more than the money. It’s created by someone who wants to provide an inheritance to a vulnerable person in order to: i. preserve dignity ii. provide stability iii. provide necessary supports iv. avoid interruption of government supports v. ensure that the support provided endures for years and decades The best time to set up a Henson Trust is before the crisis occurs – you do not want to die and leave your executors / beneficiaries scrambling. A well-crafted estate plan will protect both your estate assets and your vulnerable loved one. - Ian Keay