Joint Tenancy vs Tenancy in Common
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
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.