AuthorRobert Chambers
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.
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.

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