Until this point it has been assumed that the property acquired as a result of a grant or devise was acquired by only one person. This is not always the case. There are at least two ways that two or more persons can hold the same form of property in the same land at the same time. Consider the following grant made on 10 July 1994.
---> Grant To A and B and their heirs
As a result of this grant each of A and B holds the same form of property in that land. But what if A wants to transfer his estate in fee simple to C? What if B dies? What if A damages the land or reduces the value of property held in the land; does he have to compensate B? The answers to these questions depend on whether these people hold the property as joint tenants or as tenants in common.
Before beginning an analysis of the consequences of holding property as either a joint tenant or as a tenant in common it is important to consider how one determines the type of tenancy that is created. Consider the following grant made on 15 August 1886.
---> Grant To A and B and their heirs.
Do A and B acquire an estate in fee simple as joint tenants or as tenants in common?
The common law favoured joint tenancy. In the absence of words that would indicate whether the persons acquired the property as joint tenants or tenants in common,(1) the common law concluded that a joint tenancy was created. As a result of the previous grant, A and B held an estate in fee simple as joint tenants at common law.
The conclusion in equity, in the absence of words of severance, is that of tenants in common. Consider the following grant.
---> Grant Unto and to A to the use of B and C and their heirs.
As a result of this grant each of B and C held an estate in fee simple in equity as tenant in common with the other one. So long as there is some evidence that the grantor intended that the parties should hold the property as tenants in common, equity would conclude that even in the absence of words of severance.
Consider the following grant made on 7 July, 1947 in London, Ontario:
---> Grant To A and B and their heirs.
As a result of this grant A and B are tenants in common. Why? By statute. In Ontario s.13(1) of the Conveyancing and Law of Property Act(2) states;
Where by any letters patent, assurance or will, made and executed after the 1st day of July, 1834, land that has been or is granted, conveyed or devised to two or more people, other than executors or trustees, in fee simple or for any less estate, it shall be considered that such persons took or take as tenants in common and not as joint tenants, unless an intention sufficiently appears on the face of the letters patent, assurance or will, that they are to take as joint tenants.
If a contrary intention does not appear in the grant or devise, and the Conveyancing and Law of Property Act applies, each of the parties holds the form of property with the others as tenants in common.
Once the determination of the type of tenancy has been made, the consequences of this determination need to be considered. If two people hold the same form of property in the same land at the same time as joint tenants, each holds the form of property in that land. This applies to any form of property in land. Consider the following grant made 7 July 1964;
---> Grant To A and B and their heirs to hold jointly.
As a result of this grant each of A and B holds an estate in fee simple in that land as joint tenants. Consequently, each is at liberty to use the land. The land is not divided and neither party is at liberty to interfere with the other’s use of the land. Moreover, neither A nor B is able to grant or devise (3) the property in land.(4)
Suppose that the estate in land that was acquired by A and B in the previous grant was property in land in the downtown core of London. Suppose further that B, being a rather nasty person, decides to take possession of all of the banknotes that A and B had been accepting as payment by tenants who have contracted with A and B to occupy the land for a period of time. What can A do?
There seems to be some authority for the proposition that A would have no remedy at common law for the payments that B acquired. See below however.
Any remedy that A might have to recover some of the payments that B acquired is statutory. In Ontario, s. (2) of the Courts of Justice Act(5) states that;
An action for an accounting may be brought by a joint tenant or tenant in common, or his or her personal representative, against a co-tenant for receiving more than the co-tenant's just share.
The statute allows for an accounting to see if the joint-tenant has received more than the joint- tenant's just share. The issue that remains to be determined is the meaning of the phrase "just share". If both parties hold an estate in fee simple in that land how is one to determine what a "just share" is? Further, what benefits of holding an estate in fee simple in that land are included when one is attempting to determine the just share for each of joint tenants? Is it as our mothers told us as children; share and share alike, or are there some benefits that are not to be included when assessing a "just share"?
Returning to the example of A and B who hold an estate in fee simple as joint tenants, how is one to make the distinction between benefits that must be shared with a joint-tenant and those that need not be shared? Consider the possible distinction between these two examples:
i) Assume that, needing shelter, A resides in a piece of that land (6) in which he and B hold an estate in fee simple as joint tenants.
ii) Assume that A, wanting to reside in a different piece of land, enters into a contract with C that allows C to reside in a piece of that land that A and B hold an estate in fee simple as joint tenants. A uses the income from this contract to contract with D to reside in another piece of land.
In both examples A is benefiting from the property that he holds as a joint tenant with B. In only one case must A share this benefit with B. In the first example A is at liberty to reside in the piece of land in which he holds an estate in fee simple. He need not share this benefit with B. In the second example, A must share with B the benefit that he has received as a result of holding the property in that land. Where there is a third party involved in creating the benefit, this benefit that must be shared with a joint-tenant.(7)
Section 31 of the Conveyancing and Law of Property Act(8) states that:
[t]enants in common and joint tenants are liable to their co-tenants for waste, or, in the event of a partition, the part wasted may be assigned to the tenant committing the waste at the value thereof to be estimated as if no waste had been committed.
If A is holds property in land as a joint tenant and A dies, A’s joint tenancy ends. The heir of A inherits no property in the land. The other joint tenant or joint tenants continue as holders of the property in land (as joint tenants if more than one).
It is impossible for a joint tenant to transfer an estate held as joint tenant. If A, B and C hold an estate as joint tenants and A attempts to grant his estate to X, X acquires an undivided share as tenant in common. B and C continue to hold as joint tenants but the estate that they hold cannot be more than 2/3s of the estate originally held by the three as joint tenants. In some jurisdictions, for example, Saskatchewan, an inter vivos grant by a joint tenant is barred by statute.
Determining whether two or more people hold a form of property in land as tenants in common is performed by the same process as determining a joint tenancy. Read the words of the grant or devise. Determine whether the property in question is legal or Equitable.
At common law one would need to find words that make it clear that the grantor or devisor intended that the parties hold the property as tenants in common, or else a joint tenancy is created.
In equity one must find words that make it clear that the grantor or devisor intended that the parties should acquire the form of property as joint tenants or equity concludes the creation of a tenancy in common.
If the Conveyancing and Law of Property Act applies to the grant or devise one would conclude a tenancy in common unless it is clear that the grantor intended that the parties should hold the property as joint tenants.
Contrary to a joint tenancy, a person who holds a form of property as a tenant in common is at liberty to transfer property by grant or devise.
.As for liability between joint tenants
Assume A holds property in land as a tenant in common with others. When A dies, the property in land held is either inherited by heir of A or acquired by devise. Others who held an estate as tenant in common with A continue to do so with the heir of A.
1. These words
are generally referred to as words of severance. Words that have been held
to create a tenancy in common include in "equal shares", "share
and share alike", "to be divided between".
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2. R.S.O.
1990, c. C.34.
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3. Note
below on the death of A or B and the result of an inter vivos
grant of the estate by A or B
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4. This
is so because an attempt to transfer the property in land by devise fails
and an attempt to transfer the property in land by grant, destroys the form of property held,
the joint tenancy.
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5. R.S.O.
1990, c. C.43.
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6. By mere
coincidence, this piece of that land looks much like what an architect would
call a house. Given that we are lawyers, we of course know that we are talking
about land.
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7. Consider this example.
Suppose that A needed a specific number of former
trees to burn in his fireplace. If A were to go out and cut down trees that
are part of the land in which he and B hold the estate in fee simple,
A need not compensate B for cutting down the trees. If A were to cut
down trees, contract with C who paid to acquire possession of these trees, and then use this money to acquire possession of different trees, A would have to compensate
B for the trees removed from the land in which they
hold an estate as joint tenants.
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8. Supra,
note 2.
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