Owning Property With a Family Member or Friend - Should You Be A Joint Tenant or A Tenant in Common?
Sometimes people decide to own property together with another person. For example, you decide to buy a property with a sibling, or you inherit the family cabin as beneficiaries of a parent’s estate. Or you and your spouse are buying a new home together. It is very important to consider how to legally own the property with another person, as there are two types of ownership.
Joint tenancy is when the owners each equally own the entire property. There is a right of survivorship such that when the first person dies, the surviving joint tenant becomes the sole owner of the property. This is similar to if you shared a joint bank account with someone — both of you own every dollar in the account. Either person can use the money in the account. If one person died, the other would now own the bank account.
Some might think that joint ownership means that both owners share the property 50/50. But this is not the case. Both own 100% of the property, which means neither one has a “half” to sell.
Joint ownership is often how couples own their property if they want to ensure that if they die, their spouse will be the sole owner of the property or account. However, joint ownership doesn’t always work well for non-spouses (such as siblings or friends) who are sharing a property. It also may not be the ideal ownership for a blended family when one or both spouses have children of their own.
In that case, the other form of ownership, called ‘tenants in common”, may be more appropriate. In this case, each of the owners legally owns their share of the property. If there are 2 owners, they may each own 50% or they may own 20% and 80%. Four owners may each own 25%. With tenancy in common, when one person dies, their share remains their asset and it forms part of their estate. If they have a will, the will sets out who will receive the property. The other owner(s) do not have an automatic right to the deceased person’s share.
When you own property as a tenant in common, it is a good idea to think about preparing a co-ownership agreement. This agreement sets out what happens if someone wants to sell or if someone dies. It can also cover how the owners are going to deal with repairs, maintenance, and even use of the property.
Whether you own property as a joint tenant or tenant in common, it is important to have a will and a power of attorney. If you become incapable, unless someone has a power of attorney that gives them legal authority to manage your financial matters, no one will be able to deal with your interest in the property until they get a court order making them your committee - an expensive and lengthy process. A will sets out who is entitled to your estate. If you are the last surviving joint tenant, then your property will be part of your estate and governed by your will.
If you are considering buying property together with a spouse (whether your first or subsequent spouse), a family member or friends, you will have to decide how you wish to own the property. To make the decision that is best for you, we recommend that you speak with one of our lawyers to help you understand the options and outcomes of the two types of ownership as they relate to your wishes.
CBM Associate Lesley Russell is an expert in wills, estates, trusts, and personal planning. She received her LLB from University of Manitoba, and her Call to the Bar in British Columbia. As a wills and estates solicitor, Lesley strives to help make a difficult time a little bit easier for her clients.
CBM Lawyers is your trusted law firm. We are always here to help our clients with all matters related to property ownership and estate planning. If you are seeking legal advice regarding joint ownership, or for example, if you have recently inherited a property with other family members, or are planning to buy a property with a friend, and are unsure of how to proceed, we can help you. Contact us today.