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Harv
Harv, Lawyer
Category: Canada Law
Satisfied Customers: 832
Experience:  LLB
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Is there a legal definition for Joint Tenant in Canadian

Resolved Question:

Is there a legal definition for "Joint Tenant" in Canadian Law (specifically, Alberta)? Are there criteria that define a "Joint Tenant"? Are there conditions that must be met? An elderly person had a relative move in who somehow managed to become a "joint tenant" on the house (without the knowledge of other interested parties). Now that the elderly person has passed away, it seems that the beneficiaries of the will are left with nothing because this "joint tenant" apparently has legal title to the house. The beneficiaries are wondering if this person actually meets the criteria for "joint tenant" and/or if there is any legal remedy for this situation. Thanks.
Submitted: 3 years ago.
Category: Canada Law
Expert:  Harv replied 3 years ago.
Joint tenancy is a common law legal concept. There are two methods of registering property in Canada in more than one name. The first is a 'tenancy in common' where each of the registered owners has a specified interest in the property. If they die, their interest in the property goes to their estate.

The second is 'joint tenancy' which carries with it a right of survivorship. If one of the joint tenants dies, there interest in the property passes to the survivor by operation of law. That is apparently what has happened in this case.

If the property concerned was transferred into joint tenancy, that would have to have been done through registration at the land title office. The owner would have had to sign documentation to make that transfer and would, presumably, have known what the effect of registration was.

Unless there was some sort of fraud involved, it would be difficult to unwind the passing of the property to the joint tenant.

With that said, if there was a moral requirement for the deceased to provide for dependants and they did not do so through their estate, there may be an action available under the Dependants Relief Act in Alberta. That, however, would require litigation and estate litigation is notoriously expensive.

It may not be a bad idea to talk to further legal counsel under the circumstances about the prospects of success after litigation.

If you wish, you can contact the Lawyer Referral Service in Alberta for the names of legal counsel that will provide an initial consultation free of charge or for a nominal fee. Their telephone contact information is as follows:

1-800-661-1095 (toll free) or(NNN) NNN-NNNNin Calgary

I trust that answers your questions. If you require further clarification I would be pleased to provide it.
Customer: replied 3 years ago.
Does a "joint tenant" have any specific obligations such as to pay expenses on the property (e.g., mortgage payments, taxes, upkeep, or the like)? Or can a "joint tenant" just live in the place without paying expenses? That is, the person moving in does not pay expenses but leaves this to the original owner... can a person be a joint tenant without taking on the legitimate expenses of the property?

Also, are there more specific criteria that apply to "joint tenants"? Do they have to acquire the property at the same time? Is there such a thing as "unity in title" in the joint tenant agreement in Canadian law (these are things that are mentioned in Wikipedia, which seems to be USA based--is there anything similar in Canadian Law?). Also, Wikipedia talks about "breaking a joint tenancy." That is, if a joint co-owner "deals in any way with a property inconsistent with a joint tenancy, that co-owner will be treated as having terminated... the joint tenancy." Is there anything similar in Canadian Law?

Also, you say "unless there was some sort of fraud involved..." Can you give an example? For the sake of illustration, assume there was fraud involved--would that be a reason to cancel the joint tenancy?
Thanks.
Expert:  Harv replied 3 years ago.
Once joint tenancy is registered, there is no requirement that both joint tenants pay living expenses, taxes or anything like that. It is the registration that prevails in the absence of a written agreement regarding those obligations.

The joint tenants do not have to acquire the property at the same time - the title can be transferred from a sole owner to a joint tenancy with someone else at any time.

The 'unity of title' concept is a U.S. one - it is not relevant to what we are talking about here.

Acting in an inconsistent manner with the joint tenancy is not particularly relevant either. What you are referring to is a 'severance' of the joint tenancy. When that occurs, the property effectively becomes registered as a 'tenancy in common.' The only way this could have been accomplished is through the registration at the land title office of a severance document. It does not occur by simple actions.

The 'fraud' I was referring to was whether the signatures on the documentation transferring the property into joint tenancy were legitimate.

Attacking the joint tenancy itself is not likely going to work here.

What I would say though, is that if the transfer of the property occurred without payment (ie. the new joint tenant did not pay for their interest in the property), there may be an argument that the interest in the property held by that joint tenant was held on a 'resulting trust' in favour of the original owner. This will require a significant amount of investigation and likely some legal research and opining, but it is certainly a possibility.

I hope that assists.
Harv, Lawyer
Category: Canada Law
Satisfied Customers: 832
Experience: LLB
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