Joint Tenancy vs Tenancy in Common

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-04-19
CLNP Page ID:	61
Page Categories:	[Contract Law, Leases, & Sub-Letting (LTB)], [Section 87 (RTA)]
Citation:	Joint Tenancy vs Tenancy in Common, CLNP 61, <https://rvt.link/41>, retrieved on 2024-04-19
Editor:	Sharvey
Last Updated:	2024/03/01

See Also

• Defining a Rental Unit

New Life Centre United Pentecostal Church v Pelletier, 2021 CanLII 138929 (ON LTB)

5. When questioned about the above information, the Landlord testified that each Tenant has their own room, they share the common areas, and they are ‘tenants in common’.

6. As the Tenants are ‘tenants in common’, not ‘joint tenants’, they each have a separate tenancy agreement with the Landlord, therefore the Landlord was required to serve each Tenant with his own N13 notice as one notice cannot be used for separate tenancies.

7. This order contains all the reasons for the decision within it. No further reasons shall be written.

SWL-25288-18 (Re), 2019 CanLII 86897 (ON LTB)

10. In a joint tenancy, there is a single tenancy agreement and the tenants are jointly and severally (individually) liable for the payment of the entire rent for the rental unit. By contrast, in the case of a tenancy-in-common, although there may be a single tenancy agreement document and while all the tenants may occupy the same premises, each tenant-in-common has a separate tenancy with the landlord. Each tenant in common is individually responsible for the payment of his or her share of the rent for the rental unit.

11. Section 13 of the Conveyancing and Law of Property Act, R.S.O., 1990, c. C.34, provides that there is a presumption in favour of a tenancy in common “unless an intention sufficiently appears on the face of the letters patent, assurance or will that they are to take as joint tenants”. “Four unities” are required for a joint tenancy: unity of title, time, interest, and possession. In other words, the tenants must all take possession under the same tenancy agreement, they must have entered into the tenancy agreement at the same time, they must each take the same estate and each must take possession of the undivided whole of the premises (that is no joint tenant must exclude another joint tenant from any part of the property). (See: Fleming, Jack, Residential Tenancies in Ontario, 3rd ed. (Toronto: LexisNexis, 2011) at 158.) pp

SOT-68533-16-RV (Re), 2016 CanLII 44359 (ON LTB)

1. The Tenant’s application alleged that the Landlord locked the Tenant out of the rental unit and disposed of the Tenant's property while he was hospitalized.

2. While he was hospitalized, the Tenant's spouse and co-tenant provided the Landlord with notice of her intention to terminate the tenancy, which the Landlord accepted. She did not inform the Tenant of her intention. It was only upon leaving the hospital that the Tenant found out. By then, the Landlord had retaken possession of the rental unit.

3. After a contested hearing, the hearing member dismissed the Tenant's application. Central to his reasoning for doing so was a determination that the tenancy had been properly terminated by the Tenant's spouse, and that the Landlord had acted lawfully in taking possession of the rental unit.

11. Another element of the Tenant's position warrants comment. The Tenant relied on the reasons of the Court of Appeal for Ontario in Hansen Estate v. Hansen 2012 ONCA 112 in support of his position that the termination notice served by his co-tenant should only have served to convert the joint tenancy into a tenancy in common, and that he should continue as a tenant.

14. Unlike judges of the Superior Court of Justice, members of this Board do not have jurisdiction to sever tenancies. This Board is a creature of statute, and members of this Board may only exercise powers conferred on them by statute. There is no statutory authority empowering Board members to sever tenancies.

SWL-98259-17 (Re), 2017 CanLII 28732 (ON LTB)

25. In Murdoch v. Barry, (1976), 10. O.R. (2d) 626,

A joint tenancy may be severed by mutual agreement or by conduct of the joint tenants. If the joint tenants enter into a mutual agreement to hold as tenants in common, they change their interest and thus sever the joint tenancy. In order that a joint tenancy be severed by conduct, the act of the joint tenant must be such as to preclude him from claiming an interest by survivorship: Re Wilks: Child v. Bulmer, (891) 3 CH. 59; Canadian Law of Real Property – Anger and Honsburger, at p. 180.

26. In Hansen Estate v. Hansen, (2012) 2012 ONCA 112 (CanLII), O.J. No. 780 pp.

The three modes of severance referred in Williams v. Hensman have come to be known as the “three rules” see Burgess, at pp. 152-53; Robichaud v. Watson (1893), 1983 CanLII 1701 (ON SC), 42 O.R. (2d) 38 (H.C.J.), at p. 44; Bruce Ziff, Principles of Property Law, 5th ed. (Toronto: Thomson Reuters Canada Ltd., 2010), at pp. 342 and 354. The three rules may be summarized as follows:

Rule 1: unilaterally acting on one’s own share, such as selling or encumbering it;

Rule 2: a mutual agreement between the co-owners to sever the joint tenancy; and,

Rule 3: any course of dealing sufficient to intimate that the interest of all were mutually treated as constituting a tenancy in common.

Rule 3 governs cases where there is no explicit agreement between the co-owners to sever a joint tenancy. In contrast, rule 2 is engaged where a mutual agreement to sever is claimed to exist. This distinction between rule 2 and rule 3 is significant. What follows from this distinction is that the proof of intention contemplated by rule 3 does not require proof of an explicit intention, communicated by each owner to the other(s), to sever the joint tenancy. If such proof were required, then rule 3 would be rendered redundant because a communicated common intention would be tantamount to an agreement. Instead, the mutuality for the purposes of rule 3 is to be inferred from the course of dealing between the parties and does not require evidence of an agreement.

30. There was no dispute that during the course of the tenancy A.A. gave notice to vacate and intended to assign her portion of the lease agreement. The Landlord responded by offering A.A. the option to pay out her portion of the lease or to assign her portion of the lease for a fee of $500.00. At this point I find that the Landlord is now treating A.A.’s payment differently. I find that the Landlord started treating A.A. more like a tenancy in common. The Landlord is now taking the position the A.A.’s payment is separate from the whole. When the Landlord prepared the assignment document he separated out the new party’s payment, removed it from the whole and thus created a tenancy in common with A.A. In other words, while the remaining Tenants continued to have a joint and several tenancy with the Landlord, A.A.’s portion became a tenancy in common. The Landlord changed the nature of the lease agreement when he gave the Tenants the assignment document to sign with the change of terms in Schedule “A”. Although the assignment agreement with schedule A was never fully executed, the accumulative conduct of the parties removed A.A.’s interest of survivorship pursuant to Murdoch v. Barry, (1976), 10. O.R. (2d) 626 which set out “ In order that a joint tenancy be severed by conduct, the act of the joint tenant must be such as to preclude him from claiming an interest by survivorship “. Once A.A. no longer had keys for the rental unit the tenancy between A.A. and the Landlord terminated and she effectively had no interest of survivorship.

TSL-32288-12 (Re), 2012 CanLII 98031 (ON LTB)

6. The reason the issue of possession is important is because this application is only in part an application for eviction under section 69 of the Residential Tenancies Act, 2006 (the 'Act'); it is also an application for payment of rent arrears and daily compensation under section 87 of the Act. Subsection 87(1) says:

87. (1) A landlord may apply to the Board for an order for the payment of arrears of rent if,

(a) the tenant has not paid rent lawfully required under the tenancy agreement; and

(b) the tenant is in possession of the rental unit. [Emphasis added.]

7. Similarly, subsection 87(3) says: “If a tenant is in possession of a rental unit after the tenancy has been terminated, the landlord may apply to the Board for an order for the payment of compensation for the use and occupation of a rental unit after a notice of termination or an agreement to terminate the tenancy has taken effect.”

8. What these provisions mean is that the Board only has jurisdiction to order a tenant or former tenant to pay money for rent arrears or for daily compensation after a tenancy has been terminated by way of notice of termination, if the tenant was “in possession” of the rental unit when the application was filed. Furthermore, daily compensation can only be ordered after the date of termination as long as the tenant remains in possession.

Mohammad v Adelene, 2021 CanLII 110203 (ON LTB)

8. “Four unities” are required for a joint tenancy: unity of title, time, interest, and possession. In other words, the tenants must all take possession under the same tenancy agreement, they must have entered into the tenancy agreement at the same time, they must each take the same estate and each must take possession of the undivided whole of the premises (that is no joint tenant must exclude another joint tenant from any part of the property). (See: Fleming, Jack, Residential Tenancies in Ontario, 3rd ed. (Toronto: LexisNexis, 2011) at 158). Based on the evidence before me I find that the four unities were not present in this tenancy.

9. I find that it is more likely than not that the Tenants signed the lease at different times. The Landlord’s evidence about the signing of the lease was not persuasive as he contradicted himself on multiple occasions. By contrast, the Tenants’ testimonies about the signing of the lease were consistent and I found them to be credible.

10. I also find that the Tenants occupied separate parts of the rental unit and never took the same estate or joint possession of the entire rental unit. I accept the Tenants’ testimonies that they did not know each other prior to moving into the rental unit, and that they occupied their separate respective parts of the rental unit. Based on the evidence before me I find that they were not true co-tenants and that they consistently behaved as roomers or boarders sharing common space, with their individual rooms.

11. The main evidence before me that might point to the creation of a joint tenancy is the single lease that was signed by the Tenants. Subsection 202(1) of the Residential Tenancies Act, 2006 (the ‘Act’) directs me to consider the real substance of the transaction. I find that on the balance of probabilities, that the Tenants’ signed the same lease simply because they were asked to do so, and that this single lease did not reflect the real substance of the transaction.

Good v. Waterloo (City), 2004 CanLII 23037 (ON CA)

[3] The motions judge correctly addressed the critical phrase to be interpreted, namely whether the premises in question are a "single housekeeping unit". He used as an important interpretive criterion whether there was collective decision- making sufficient to create a single unit for housekeeping purposes. We agree this is an appropriate criterion.

[4] In this case, there was ample evidence to support his decision that there was sufficient collective decision-making to meet this criterion, including:

(a) how the rent was paid;

(b) the furnishing of the apartment and rooms by the occupants;

(c) payment of the utilities by the occupants;

(d) the assignment of the rooms by the occupants; and

(e) how the housekeeping, or lack of it, was to be done.

[5] The cohesiveness of this unit is further exemplified by the fact that most of the occupants had occupied the premises for lengthy periods of time.

[6] There was also ample evidence on which the motions judge could conclude that this was not a circumstance in which there was exclusive possession of any parts of the unit.

Good v. Waterloo (City), 2003 CanLII 14229 (ON SC)

[23] In my view, the distinguishing characteristic as between a lodging house and a residential unit focuses on the control of the premises. The label currently attached, a lease, is of little importance as such may, in some cases, simply be a method to disguise the true purpose and use.

[24] Control, in a lodging house, is by the owner and the occupants on an individual basis, whereas in a residential unit it is by the group. Accordingly, for a residential unit there must be evidence of collective decision-making regarding the use of the premises.

...

[28] The existence of locks on bedroom doors is not a factor. The evidence indicates the occupants have used locks without the applicant's permission although I am certain they were aware of their existence. To suggest the use of locks creates exclusive possession contrary to para. 2.4(d) of the by-law is not appropriate. This is not the operative part of para. 2.4(d). Further, the use of locks, in my view, merely denotes privacy and security.

[29] Payment of rent individually is now a common practice in residential leases, particularly involving students. It avoids the need of a communal bank account.

...

[31] If this was a lodging house, there would be significant control of the premises and the use of the premises by the applicant. There was no evidence to support this argument.

[32] In result, I am satisfied the evidence presented on this application indicates the actual use of the premises is as residential units within the meaning of para. 2.4 of By-law No. 00-140 and, accordingly, the application is granted.