- Hold title as joint tenants
- Hold title as tenants-in-common.
The features or unities characterizing a joint tenancy are the following:
- Possession – all tenants have possession of the property.
- Time – all tenants acquire an interest in the property at the same time.
- Title – all tenants hold the same title to the property
- Interest – all tenants have an equal interest in the property.
Tenancy in common only requires the unity of possession. Tenants-in-common may hold differing percentage interests in the same property, which title can be acquired at varying times.
The most significant difference between a joint tenancy and a tenancy in common is the right of survivorship, which right only applies to a joint tenancy. This principle states that upon the death of a joint tenant, the surviving joint tenant(s) becomes the owner(s) of the deceased tenant’s interest in that property. The surviving joint tenants continue to own the real property as a whole; there are no undivided shares of the land. When a co-owner dies as part of a tenancy in common, his/her undivided share in the property passes through his/her estate, rather than to the surviving co-owners.
There is an exception to the general rule of the right of survivorship, specifically in section 26(1) of the Family Law Act, which provides,
“If a spouse dies owning an interest in a matrimonial home as a joint tenant with a third person and not with the other spouse, the joint tenancy shall be deemed to have been severed immediately before the time of death.”
Consequently, the severance of the joint tenancy between the deceased spouse and third party creates a tenancy in common and the deceased spouse’s interest in the property passes through his/her estate rather than to the third party through the right of survivorship.
It is notable that a joint tenant may unilaterally sever the joint tenancy and become a tenant in common, essentially dividing their interest in the property and allowing them to dispose of it either through a sale or through their Will/intestacy through various actions, such as mortgaging the property.
Where the designation of title is not specified, section 13(1) of the Conveyancing and Law of Property Act states that the owners of real property are considered to be tenants-in-common.
