Co-Ownership

• Author: Robert Chambers
• Pages: 82-101

82

CHA PTER 5

CO - OWNER SHI P

A. INTRODUCTION

As discus sed in Chapter 3, rights can be allocated su ccessively over time

(e.g., to my widow for life and then to my daughter in fee simple). This

chapter explains how rights can be shared concurrently, with two or

more people sharing them at the same ti me. There are two main ways

in which rights can b e shared: jointly or in commo n. These are often

called joint tenancy a nd tenancy in common, in reference to the tenants of

freehold or leasehold estates, but all kind s of rights can be shared jointly

or in common, including bank accounts and other r ights in personam.

Joint and common ownership are not the only ways in which rights

can be shared. As d iscussed in the previous chapter, the asset s of a mod-

ern discretiona ry trust are distributed among t he benef‌iciaries through

the exercise of the tr ustees’ discretion. As di scussed below, condomin-

iums allow people to divide up the posse ssion of land, with some parts

possessed individually and other part s collectively.

Two other forms of co-ow nership are no longer in use. Prior to the

Married Women’s Property Act 18821 in the United Kingdom (and later

in Canada), married women had only a lim ited capacity to own prop-

erty because t heir legal property rights would be tr ansferred to their

husbands on marr iage. If land was conveyed to a husband and wife, it

1 45 & 46 Vict, c 75.

Co-owner ship 83

would create a tenancy by entireties.2 Back when real property would

pass on the owner’s death to t heir heir, a co-parcenary would be created

if two or more daughters shared the property a s heirs.3

This chapter deals f‌ir st with the dierences between joint and

common ownership. It then explains s evera nce, which is t he process

of changing joint ownership into common ownership, and partition,

which is the process of bringing co-ownership to an end and div iding

up the assets (or their sale proceeds). The chapter ends with a brief look

at condomin iums.

B. JOINT AND COMMON OWNERSHIP

There are two main dierences between joint and common ownership.

First, the interests of joint tenants must be identical, whereas the inter-

ests of tenants in common can dier from each other. Second, joint ten-

ants have the right of sur vivorship (sometimes cal led the jus accre scendi),

but tenants in common do not. When a joint tenant dies, their i nterest

ceases to exi st, and the surviv ing joint tenants keep the asset for them-

selves. If there is only one surv iving joint tenant, then the joint tenancy

has come to an end, and the sur vivor is the sole owner. When a tenant

in common dies, their interest continues a fter their death and wil l be

transferred by w ill or on intestacy to someone who will join the surviv-

ors as a tenant in common.

1) Four Unities

Joint tenancies must be identical in four dierent re spects called the four

unities: unity of possession, unity of interest, unity of title, and unity

of time. Tenancies in common may have all four unities, but that is not

required. The only unity required for a tenanc y in common to exist is

unity of p osses sion.

Unity of possession means that all tenants share posse ssion at the

same time. If it is mis sing, then there is no co-ownership. The tenants

will inste ad have possession at dierent times (e.g., a life estate followed

by a remainder) or possession of dierent things (e.g., land subdivided

into separate parcels).

2 See Re Demaiter an d Link, [1973] 3 OR 140 (SC).

3 See John Baker, An Introducti on to English Legal History, 5th ed (Oxford: Oxford

University Pre ss, 2019) at 287–88.