When two or more people buy property together in Alberta, they must decide how their ownership will be registered: as joint tenants or as tenants in common.
The distinction affects what happens when an owner dies, whether an owner can leave their interest through a will, how ownership percentages are recorded, and what may happen if the owners separate, become insolvent, or disagree about the property.
This decision should be made before the Transfer of Land is prepared—not for the first time at the signing appointment.
The Default Rule in Alberta
If a transfer places two or more people on title but does not specify the form of co-ownership, Alberta law treats them as tenants in common.
Joint tenancy is not created by default. The transfer must expressly state that the owners will hold the property as joint tenants.
There is another important point: if tenants in common do not specify their proportionate interests, Alberta Land Titles does not simply assume that they own equal shares.
The transfer should therefore clearly state the intended interests, such as:
- One-half each
- 60% and 40%
- One-third each
- Another agreed division
Leaving the percentages undefined can create uncertainty about what each person actually owns.
What Is Joint Tenancy?
Joint tenancy is a form of co-ownership characterized by the right of survivorship.
The joint tenants hold the same legal interest in the property under the same title. Within the same joint tenancy, they are not registered as owning unequal percentages such as 60% and 40%.
All joint tenants are entitled to possess the property, although they can agree between themselves about who will live there and how it will be used.
The main feature of joint tenancy is what happens when one owner dies.
The right of survivorship
When a joint tenant dies, the deceased owner’s registered interest normally passes to the surviving joint tenant or tenants by operation of law.
The interest does not ordinarily pass under the deceased owner’s will. A will cannot direct that an existing joint-tenancy interest be left to someone else unless the joint tenancy was severed before death.
The surviving owner must still update the title. Alberta Land Titles generally requires a statutory declaration and acceptable proof of death before removing the deceased joint tenant’s name.
A grant of probate is not normally required solely to remove a deceased joint tenant from title.
Joint tenancy does not eliminate every estate dispute
The name on title establishes registered legal ownership, but it does not resolve every possible dispute about beneficial ownership.
For example, where a parent adds an adult child to title without payment, a dispute may arise after the parent’s death about whether the parent intended:
- An immediate gift of ownership;
- A gift of only the right of survivorship; or
- For the child to hold the interest in trust for the parent or the parent’s estate.
The surrounding evidence and the parent’s intention can become important. Joint tenancy should therefore not be used as an informal estate-planning shortcut without legal and tax advice.
Key characteristics of joint tenancy
- The owners hold the same legal interest within the joint tenancy.
- The property includes a right of survivorship.
- A deceased joint tenant’s registered interest does not normally pass through their will.
- A surviving owner must submit proof-of-death documentation to update title.
- One joint tenant may be able to sever the joint tenancy during their lifetime.
- Joint tenancy does not prevent trust, family-property, creditor, or estate disputes.
What Is Tenancy in Common?
Tenancy in common is a form of co-ownership in which each owner holds a separate undivided interest in the property.
The interests may be equal or unequal. For example, two buyers may hold:
- One-half each;
- 70% and 30%; or
- Any other clearly defined proportion.
“Undivided” does not mean that each person owns a particular room, floor, or physical section of the property. Each tenant in common generally has a right to possess the entire property, subject to any agreement or court order governing its use.
What Happens When a Tenant in Common Dies?
There is no right of survivorship.
When a tenant in common dies, their interest becomes part of their estate. It is then distributed according to:
- Their valid will; or
- Alberta’s intestacy rules if they did not leave a valid will.
The deceased owner’s personal representative will generally need the appropriate probate or administration documents before the interest can be transmitted or transferred through Alberta Land Titles.
The surviving co-owner does not automatically receive the deceased owner’s share.
A tenant in common who wants to control who receives their interest should have an estate plan that addresses the property.
Can a Tenant in Common Sell or Mortgage Their Own Interest?
A tenant in common can generally transfer, gift, mortgage, or otherwise deal with their own undivided interest without transferring the interests of the other co-owners.
That right may still be affected by:
- A co-ownership agreement
- Mortgage terms
- Dower rights
- Family-property claims
- Court orders
- Caveats or other registrations
- Contractual rights of first refusal
- Restrictions imposed by another agreement
Selling an undivided interest is also different from selling the entire property. A purchaser of one co-owner’s interest ordinarily becomes a co-owner with the remaining owners.
Finding a buyer or lender willing to deal with only one undivided interest may be difficult.
Can a Joint Tenant Deal With Their Own Interest?
Joint tenants have more individual control than many people assume.
A joint tenant may be able to mortgage their own interest. Registering that mortgage does not, by itself, necessarily sever the joint tenancy. Severance may occur later if the interest is foreclosed.
A joint tenant may also sever the joint tenancy by transferring their interest to themselves as a tenant in common or to another person.
Alberta Land Titles will not register a severing transfer unless:
- All joint tenants execute the transfer;
- The non-signing joint tenants give written consent; or
- Evidence is provided that the non-signing joint tenants were properly served with written notice of the intended registration.
This means a joint tenant may be able to sever unilaterally, but cannot secretly register the severance without satisfying the applicable notice requirements.
Dower rights may also need to be addressed where a married joint tenant transfers or mortgages their interest.
Which Ownership Structure Is Right for You?
There is no ownership structure that is automatically right for every couple, family, or group of investors.
The decision depends on:
- Estate-planning goals
- Financial contributions
- The owners’ relationship
- Whether the owners want survivorship
- Whether an owner has children from a previous relationship
- Creditor or bankruptcy concerns
- Family-property rights
- Tax consequences
- Whether an owner should be able to transfer their interest independently
- What should happen if one owner wants to leave
Married Spouses and Adult Interdependent Partners
Married spouses often choose joint tenancy because they want the surviving spouse to receive the home by right of survivorship.
That does not mean joint tenancy is automatically the best choice for every marriage.
Spouses in a blended family may want each person’s interest to pass under their will for the benefit of children from an earlier relationship. Tenancy in common may assist with that goal, but it must be coordinated with wills, dower rights, family-property law, tax planning, and any obligation to support a surviving spouse or dependant.
Adult interdependent partners may also choose either form of ownership.
Regardless of how title is registered, Alberta’s Family Property Act may affect the division of property when spouses or qualifying adult interdependent partners separate. A court may order a sale, transfer an interest, recognize an interest that is not shown on title, or sever a joint tenancy.
The wording on title is important, but it does not necessarily determine the final division of family property.
Friends, Siblings, and Investment Partners
People purchasing property as friends, siblings, or business partners frequently choose tenancy in common because it allows them to record unequal contributions and separate ownership percentages.
The title alone is not enough to manage the relationship.
Co-buyers should consider a written co-ownership agreement addressing:
- Initial down-payment contributions
- Mortgage-payment obligations
- Property taxes and insurance
- Repairs and maintenance
- Renovation decisions
- Who may live in the property
- Rental income
- Whether owners may mortgage their interests
- What happens if an owner defaults
- How a buyout will be valued
- Rights of first refusal
- When the property must be sold
- What happens if an owner dies or loses capacity
- How disputes will be resolved
Without an agreement, a disagreement about use, expenses, refinancing, or sale can become expensive and difficult to resolve.
Parents Adding an Adult Child to Title
Adding an adult child as a joint tenant is sometimes presented as a simple way to avoid probate.
It is not a risk-free administrative step.
Adding the child may:
- Transfer a legal ownership interest immediately
- Expose that interest to the child’s creditors
- Create complications if the child becomes bankrupt
- Affect the child’s family-property situation
- Require the mortgage lender’s consent
- Create income-tax or principal-residence issues
- Limit the parent’s ability to sell or refinance independently
- Lead to disputes among estate beneficiaries
- Create uncertainty about whether the child received a beneficial gift or holds the property in trust
The parent’s intention should be documented clearly, and legal, estate-planning, and tax advice should be obtained before the transfer is registered.
Severing a Joint Tenancy
Severance converts a joint tenant’s interest into a tenancy-in-common interest and ends the right of survivorship for the severed interest.
A joint tenancy may be severed through:
- A transfer signed by all joint tenants
- A unilateral transfer by one joint tenant to themselves as a tenant in common
- A transfer by one joint tenant to a third party
- A court order
- Bankruptcy
- Certain creditor-enforcement proceedings
- A binding agreement or course of dealing that legally demonstrates an intention to treat the ownership as a tenancy in common
The correct procedure depends on the circumstances.
Where one of two joint tenants severs by transferring their interest to themselves, the new title will generally show both owners as tenants in common, each holding an undivided one-half interest.
Where there are more than two joint tenants, one owner may sever their proportionate interest while the remaining owners continue to hold the balance between themselves as joint tenants.
Separation Does Not Automatically Sever Joint Tenancy
When spouses or partners separate, the joint tenancy does not automatically end merely because the relationship has ended.
Unless the joint tenancy is legally severed, the right of survivorship may continue.
If one joint tenant dies before severance, the surviving joint tenant may acquire the deceased owner’s registered interest even if the parties had been separated.
A joint tenancy cannot ordinarily be newly severed by a will or by an event occurring after an owner’s death.
A court dealing with the matter after death may determine whether actions, agreements, or dealings during the deceased owner’s lifetime had already severed the joint tenancy. That is different from creating a new severance after death.
People separating should obtain family-law, estate, and real-estate advice before attempting to change title.
Bankruptcy and Creditor Risks
Joint tenancy does not shield an owner’s interest from bankruptcy or creditor enforcement.
A joint tenant’s bankruptcy severs the joint tenancy as to the bankrupt owner’s interest. The trustee in bankruptcy may then deal with that interest for the benefit of creditors.
Creditor-enforcement proceedings may also affect a debtor’s interest in jointly owned land. The consequences depend on whether the creditor has properly registered and enforced its claim.
A co-owner is not automatically personally responsible for another owner’s debts merely because they share title. However, enforcement against one owner’s interest can affect the property, refinancing, and the remaining co-owner’s practical options.
Changing the Ownership Structure After Purchase
Co-owners can change from joint tenancy to tenancy in common, or from tenancy in common to joint tenancy, after purchase.
Where all co-owners agree to change the form of ownership, a Transfer of Land signed by all of them must generally be registered.
A joint tenant may also pursue unilateral severance using the applicable transfer and notice process.
Alberta law does not state that a lawyer must prepare every title change. However, the Government of Alberta recommends legal assistance because transfers are legal documents with potentially significant consequences.
Before changing ownership, the parties should consider:
- Mortgage-lender consent
- Dower rights
- Family-property consequences
- Income-tax consequences
- Estate-planning consequences
- Creditor exposure
- Whether money is being paid for the transferred interest
- Whether independent legal advice is appropriate
An informal verbal or written agreement may affect the parties’ rights, but it does not by itself update the registered title.
The Question Your Lawyer Will Ask
Before closing, your lawyer will ask how the buyers want to be registered.
That question should not be answered solely by saying:
- “We are married.”
- “We contributed equally.”
- “We want to avoid probate.”
- “We are buying together.”
The buyers should consider what they want to happen if:
- One owner dies
- The relationship ends
- One owner stops paying
- One owner becomes bankrupt
- One owner wants to sell
- One owner wants to leave their interest to children or another beneficiary
The title structure is only one part of the planning. Wills, co-ownership agreements, family-property agreements, mortgage obligations, and tax planning may also be required.
Speak With an Edmonton Real Estate Lawyer
Berjak Law assists single buyers and co-buyers with residential purchases, title transfers, joint-tenancy and tenancy-in-common registrations, survivorship applications, severances, and changes in property ownership.
Berjak Law is located at 10080 Jasper Ave, Suite 301 in Edmonton.
Contact the firm before closing—or before adding, removing, or changing an owner on title—to discuss how the property should be registered.
This article provides general information about Alberta property law and is not a substitute for legal, estate-planning, family-law, bankruptcy, or tax advice regarding a particular property or ownership arrangement.
