Change from Tenants in Common to Joint Tenants in Common

[Jayz]

Does anyone know how to make this change in Ontario regarding the matrimonial home? We are hoping to do without a lawyer.
Thanks.

[mom2three]

Does anyone know how to make this change in Ontario regarding the matrimonial home? We are hoping to do without a lawyer.
Thanks.

Hi Jayz:
There are 2 terms that relate to property in Ontario where more than one person holds title. They are "joint tenants" and "tenants in common". You call this property your matrimonial home. Are you married? If so, regardless of whose name is actually on the property prior to marriage, you are both now "joint tenants" by virtue of your marriage. The type of tenancy CANNOT be changed so long as you are legally married. You cannot "will" your share of property as such a declaration in a will would be invalid - the right of survivorship overrides any request you put in a will. These rights of joint tenancy will only end either upon death or divorce. Say perhaps that prior to marriage you and your Mom shared "tenants in common"- your share of the property automatically reverts to your wife upon your death and she is now a tenant in common with your Mom.

HOWEVER, if you are common law, this is an entirely different matter. At this juncture you would need to know the difference of both types of ownership and the implications of each. You would need to look at the actual title to determine which type of tenancy is on the title. In "joint tenancy", two or more people own the property where on the death of one, the survivors inherit the deceased's share. In "tenants in common", two or more people owning property where on the death of one, the deceased person's share passes to his or her heirs rather than the owners; no right of survivorship. Scenario: you and your spouse are "common law". Should you die and the tenancy is "joint", your share of the property transfers to your common law spouse - you CANNOT will your share of the estate to anyone (you can try but such a declaration would be invalid). If the tenancy is "tenants in common", you can will your share to anyone - your dog, the Pope, you children etc. Your common law spouse will now be a "tenant in common" with whomever you willed this part or your estate to.

Remember - if you are legally married you CANNOT change the ownership of the title of the matrimonial home. Even if you were to both agree to a change such an agreement would be invalid.

Furthermore, as to whether to make such a change (if in fact you are common law) why would you want to avoid a lawyer? I know they charge fees, but with all due respect, they are imperative so that these types of scenarios do not occur. If you are in fact common law you would both each need a lawyer (conflict of interest negates charing a lawyer in such a matter) and they can advise you as to the repercussions of a change of tenancy.

[Jayz]

Hi Jayz:
There are 2 terms that relate to property in Ontario where more than one person holds title. They are "joint tenants" and "tenants in common". You call this property your matrimonial home. Are you married? If so, regardless of whose name is actually on the property prior to marriage, you are both now "joint tenants" by virtue of your marriage. The type of tenancy CANNOT be changed so long as you are legally married. You cannot "will" your share of property as such a declaration in a will would be invalid - the right of survivorship overrides any request you put in a will. These rights of joint tenancy will only end either upon death or divorce. Say perhaps that prior to marriage you and your Mom shared "tenants in common"- your share of the property automatically reverts to your wife upon your death and she is now a tenant in common with your Mom.

HOWEVER, if you are common law, this is an entirely different matter. At this juncture you would need to know the difference of both types of ownership and the implications of each. You would need to look at the actual title to determine which type of tenancy is on the title. In "joint tenancy", two or more people own the property where on the death of one, the survivors inherit the deceased's share. In "tenants in common", two or more people owning property where on the death of one, the deceased person's share passes to his or her heirs rather than the owners; no right of survivorship. Scenario: you and your spouse are "common law". Should you die and the tenancy is "joint", your share of the property transfers to your common law spouse - you CANNOT will your share of the estate to anyone (you can try but such a declaration would be invalid). If the tenancy is "tenants in common", you can will your share to anyone - your dog, the Pope, you children etc. Your common law spouse will now be a "tenant in common" with whomever you willed this part or your estate to.

Remember - if you are legally married you CANNOT change the ownership of the title of the matrimonial home. Even if you were to both agree to a change such an agreement would be invalid.

Furthermore, as to whether to make such a change (if in fact you are common law) why would you want to avoid a lawyer? I know they charge fees, but with all due respect, they are imperative so that these types of scenarios do not occur. If you are in fact common law you would both each need a lawyer (conflict of interest negates charing a lawyer in such a matter) and they can advise you as to the repercussions of a change of tenancy.

Thank you mom2three. That is helpful. The specifics are that I purchased 50% of my wife's home before we were married. At the time I believe we registered the deed as joint tenants. We had understand that changing that to a normal marriage ownership model would be better and avoid probate when one of us dies.