Property Law... Whose House Is It?

Monday, September 14th, 2015
Posted in: by Anne McFarlane, Associate

Anne McFarlane – September 2015

When two or more buyers are contemplating purchasing a property together, one of the first decisions they must make is also one of the most important. That is, how they will take title to the property. In Nova Scotia, there are two options: to take title to the property either as joint tenants or tenants in common. Although these terms may sound similar, the differences are significant and should be considered in advance of the transaction.

Both joint tenancy and tenancy in common create joint legal ownership of a particular property. The difference is with respect to how ownership to the property will transfer in the event one owner predeceases the other(s). In a joint tenancy, the deceased’s interest in the property would automatically pass to the other owner or owners of the property upon their death. In a tenancy in common, the portion of the ownership of the deceased owner would pass on to their estate. Who this ownership would pass on to is determined by the deceased’s estate planning.

It is possible that buyers will want varying percentages of ownership which is not necessarily shared equally. This must be described in the deed to the property. It is possible to draft a deed which allows for a specific percentage of ownership or to have a combination of joint tenancy and tenancy in common ownerships. What arrangement works best will depend on the circumstances of the parties involved in the transaction and should be discussed in detail before determining how to take title.

If the buyers are married spouses, the most common way to take title would be by way of joint tenancy. This allows for the property to pass directly to the surviving spouse, and allows the parties to avoid probate issues regarding the property. However, not all spouses will choose joint tenancy, particularly in the case of blended families.

If there is not agreement among the parties from the outset, it may be necessary for one or all of them to receive independent legal advice. If you are unclear how to take title to your property, you should contact a lawyer to discuss.

Please contact a member of our real estate team for assistance with your real estate transaction.

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