Quick answer
In Ontario, joint tenants own the whole property together, and when one owner dies the survivor takes the home automatically (the right of survivorship). Tenants in common each own a separate share, equal or unequal, and a share passes under the owner’s will or, without a will, the rules of intestacy. Neither is better for everyone: the right choice depends on who is buying, who paid what and who you want to inherit.
If a transfer to two or more people does not clearly say they take as joint tenants, section 13 of the Conveyancing and Law of Property Act treats them as tenants in common. Decide how you will hold title before you close, not on closing day.
Buying property in Toronto or the GTA involves mortgage approvals, inspections and land transfer tax calculations, and many buyers overlook one foundational decision: how they will hold title. The choice between joint tenancy and tenancy in common quietly shapes your estate planning, your family’s security and what happens if you and a co-owner part ways. This guide explains the difference, what Ontario law says, and where buyers go wrong.
How Ontario Law Treats Co-Ownership
When land is transferred to two or more people, section 13 of the Conveyancing and Law of Property Act treats them as tenants in common and not joint tenants, unless an intention to take as joint tenants appears on the face of the document. That rule applies even when the owners are spouses. Land that two or more people acquire by length of possession is also held as tenants in common (section 14). See the Conveyancing and Law of Property Act on Ontario.ca.
In practice, your lawyer registers the transfer electronically, and the document states how you hold title. Once registered, that is a public record. The right of survivorship is a feature of joint tenancy itself, not something a will can add or remove. The Succession Law Reform Act matters mainly for wills, intestacy and what happens when owners die at the same time.
Joint Tenancy: The Right of Survivorship
Joint tenancy is common among married couples and long-term partners. Its defining feature is the right of survivorship: when one owner dies, that owner’s interest passes automatically to the surviving owner or owners, and it does not pass under a will.
The four unities
A joint tenancy needs four things in place at the same time. A tenancy in common needs only the first.
- Possession: each owner has the right to possess the whole property. You cannot fence off your half of the living room.
- Interest: each owner holds the same interest. Two joint tenants each own an equal share, so a 70/30 split is not possible in a joint tenancy.
- Title: all owners get their interest through the same transfer document.
- Time: everyone’s interest begins at the same time.
The estate tax advantage
Ontario’s Estate Administration Tax is the charge many people call probate fees. It is calculated on the value of the deceased’s estate, and the province’s guidance says assets held in joint ownership that automatically become the other owners’ are not part of that value. For an estate over $50,000, the tax is $15 for every $1,000 of its value, and real estate counts at its value less any mortgage or other encumbrance. A home that passes by survivorship therefore stays out of the calculation. See Ontario.ca, Estate Administration Tax.
The survivor still has to register the death on title. Our survivorship application service handles that step.
The risk: less control
A joint tenant cannot leave their share of the home to someone else in a will, because the survivor takes the whole property. If you are in a second marriage and want your share to go to your children from an earlier relationship, joint tenancy will not do that. The home goes to the surviving owner.
Joint tenancy can be ended by one owner
The right of survivorship is not permanent. A joint tenant can usually end it for their own share without the others’ consent, for example by transferring their interest, which the Conveyancing and Law of Property Act allows a person to do even to themselves (sections 40 and 41). The owners then hold as tenants in common. Courts have also treated other events as severing a joint tenancy. In Toronto-Dominion Bank v. Phillips, 2014 ONCA 613, the Court of Appeal said severance can occur on bankruptcy, and that a creditor’s writ of execution severs a joint tenancy only when it is acted on, not merely filed. See the Court of Appeal decision.
The practical point: a registered joint tenancy does not guarantee that the survivor will take the whole home. If your relationship, finances or plans change, review how you hold title.
Tenants in Common: Flexibility and Control
Tenants in common is often the choice for business partners, friends buying together and blended families. There is no right of survivorship, and each owner holds a distinct share.
- Unequal shares: if one person puts in 80% of the down payment, the owners can register an 80/20 split, so sale proceeds follow the registered shares.
- Your share goes under your will: when a tenant in common dies, the share becomes part of the estate and passes to the beneficiaries named in the will, or under the intestacy rules if there is no will.
- Estate tax applies to the share: because the share is part of the estate, its value (less the owner’s share of any mortgage) counts toward the Estate Administration Tax.
- You can deal with your share: a tenant in common can sell or mortgage their own share, but finding a buyer for a share of a house is hard. A written co-ownership agreement should say how buy-outs, sales and costs work.
Money Matters: Taxes, Creditors and Disputes
Land transfer tax and capital gains
Land transfer tax is based on the price you pay, not on how you hold title, so the choice does not change it at closing. For income tax, a home you own jointly can qualify for the principal residence exemption, and each owner must meet the conditions personally. See the CRA’s Income Tax Folio on the principal residence. How a gain on an investment property would be reported depends on each owner’s interest, so speak with your accountant.
Creditors
In either arrangement, a creditor of one owner can generally pursue that owner’s interest. In a joint tenancy, a creditor who acts on a judgment, or a bankruptcy, can end the right of survivorship, so it is not a shield. If one co-owner carries business or personal debt, talk to a lawyer before you register title.
If the owners cannot agree
Under the Partition Act, joint tenants and tenants in common can be compelled to make or accept a partition or a sale of the land, and any person interested in the land can apply to the court. The court can order a sale if it considers that more advantageous to the parties (sections 2 and 3). See the Partition Act on Ontario.ca and our article on forcing the sale of jointly owned property. A court process is slower and costlier than a clear agreement made at the start.
A Worked Example: Two Owners, Unequal Contributions
This is a hypothetical. Amir contributes $200,000 toward a Scarborough duplex and Daniel contributes $50,000. To keep things simple, they register as joint tenants. If Daniel dies, Amir takes the whole duplex by survivorship, and Daniel’s family receives nothing from it despite his $50,000, unless they can prove a different intention in court, which is slow and uncertain.
If they had registered as tenants in common, with an 80/20 split and a co-ownership agreement, Daniel’s 20% would have passed under his will, and the agreement could have set out how a buy-out works.
Parents on Title and First-Time Buyers
First-time buyers sometimes need a parent on title to qualify for a mortgage. If a parent is added “just for the mortgage” as a joint tenant, the parent’s interest passes by survivorship to the child on title if the parent dies first, which can leave the buyer’s siblings out. A tenancy in common with defined shares, or a written trust agreement stating that the child is the beneficial owner, can record what the family actually intends.
At Sarkaria Sethi LLP, we often assist families in these situations by drafting bare trust agreements. The Canada Revenue Agency’s trust reporting rules for bare trusts have been changing, so ask your accountant what applies to you.
Separation and the Matrimonial Home
Under the Family Law Act, both spouses have an equal right to possession of a matrimonial home (section 19), whichever of them is on title. On separation, the law equalizes each spouse’s net family property, and the matrimonial home is treated specially: its value at the date of marriage is not deducted (section 4). So title alone does not decide what a spouse receives on separation. See the Family Law Act on Ontario.ca.
Before You Close: What to Do
- Before you sign, decide who will be on title and how: joint tenants or tenants in common, and in what shares.
- Have your lawyer review the agreement of purchase and sale and talk through your family structure, who contributed what and your estate plans.
- Make sure the mortgage and the title are consistent. Your lawyer reviews your lender’s instructions, and differences should be sorted out before closing.
- On closing day, your lawyer registers the transfer, and it states how you hold title.
Red Flags to Watch For
- Adding someone just to help: never add a friend or relative to title without a written agreement about what happens if you want to sell.
- Verbal side agreements: a handshake deal about percentages is hard to prove if it contradicts the registered title.
- Blended families: defaulting to joint tenancy can leave children from a previous relationship with nothing.
- Changing circumstances: a new relationship, a separation, a bankruptcy or a large debt can change what your title does. Review it.
Frequently Asked Questions
Does joint tenancy avoid probate?
For the home itself, in most cases yes. Ontario’s guidance says jointly owned assets that automatically become the other owners’ are not part of the estate for Estate Administration Tax. If all the joint tenants die at the same time, or it is uncertain who survived, the Succession Law Reform Act treats them as tenants in common unless a contrary intention appears, so each share falls into that person’s estate.
Can a will override joint tenancy?
No. Property held in a joint tenancy passes to the surviving owner by survivorship, not under a will. To change that, the joint tenancy has to be ended while the owners are alive.
Can I sell my share if I am a tenant in common?
Yes, you can sell or mortgage your own share. Finding a buyer for a share of a house is difficult, so a co-ownership agreement that sets out how buy-outs work is important.
Can one joint tenant end the joint tenancy?
A joint tenant can usually end the right of survivorship for their own share without the others’ consent, for example by transferring their interest. Bankruptcy can also end it. Speak with a lawyer before you take any step.
What happens if we separate?
Both spouses have an equal right to possess the matrimonial home, and on separation the law equalizes net family property rather than following title alone. Speak with a family lawyer about your situation.
What if we cannot agree to sell?
Any person interested in the land can apply to the court under the Partition Act, and the court can order a sale if it considers that more advantageous. A co-ownership agreement made at the start can avoid that.
Do I need a lawyer to decide how to hold title?
A lawyer registers the transfer in any case, and the choice affects your estate, your family and your exit options. It is best made before you sign, with advice.
Related: our title transfer service, our survivorship application service, our guide to closing costs and our article on transferring property to family.
Talk to a real estate lawyer about your property. Call (647) 696-8069 or book a free consultation. We serve clients in English, Hindi and Punjabi.
Legal Information, Not Legal Advice. This article is general information about co-ownership in Ontario, based on the Conveyancing and Law of Property Act, the Succession Law Reform Act, the Partition Act, the Family Law Act, the Ontario government’s Estate Administration Tax guidance and a Court of Appeal decision, checked on October 27, 2026. It is not advice on your situation, so speak with a real estate lawyer before you decide how to hold title.
