Tenants in Common vs. Joint Tenants
Are you thinking about purchasing a home with another person? Are you confused between “joint tenants” vs “tenants in common” and how they can affect you?
Prospective homeowners are faced with many important decisions when purchasing a home. One of the most important decisions when buying a home with one or more other people is whether you hold the title to the property as joint tenants or as tenants in common.
The effects of this decision arise mainly upon the death of one of the property owners. Still, they can also impact the property transfer tax the new owners must pay. Keep reading for a clear explanation of the main differences between joint tenancy and tenants in common in BC and other provinces.
What Is Joint Tenant?
Joint tenancy is a form of property ownership in which two or more people own an equal share of a property and have equal rights to use and occupy the property. When acquiring a home with another person, most couples in BC and other provinces prefer to take the title as Joint Tenants. This usually makes sense because the main benefit of joint ownership is the right of survivorship.
The right of survivorship means that in case of one owner dies, the property’s interest immediately goes to the other owner(s) on the title. As joint tenants, each owner owns 100 percent of the property; shares in the property aren’t divided among the multiple owners, regardless.
For estate planning considerations, homeowners who own a house solely in their name can consider adding a family member to the title as a joint tenant. Because the title will transfer by right to the other owner, this can be handy in avoiding taxes and probate fees when the homeowner dies.
If the deceased owner’s name is the only name on the title, in that case, the home must be probated together with other estate assets, greatly increasing the fees that must be paid before the estate funds can be transferred to the beneficiaries.
- With joint tenancy, there’s no need to write a deed of trust or any other legal documentation. As a result, you can save money on legal fees.
- It gets rid of the requirement to create a will for the transfer of a property share.
- In the case of the death of a co-owner under joint tenancy, there’s no need to claim the security of ownership. The share of the property automatically transfers to the joint tenant.
- Since it’s simple beneficial ownership, each spouse receives an equal share of the property in the event of divorce.
- Since ownership is equal, income from residential rentals is also distributed equally among owners. It eliminates the need to fill out an extra form to declare the percentage of rental income.
- Joint tenancy can occasionally offer protection against creditors. As the property is owned equally with the other tenant, the creditor cannot seize that joint tenant’s share if the tenant has debts or court judgments against them.
- Joint tenancy can help avoid probate fees. When one joint tenant is deceased, their share of the property is transferred to the surviving joint tenant(s), which may be costly and time-consuming.
- Tax problems might arise from a joint tenancy. For instance, if one of the joint tenants dies, the property can be liable to capital gains tax on the rise in value since the initial purchase.
- Tenant can’t choose their terms or specify their share of the property since there’s no deed of trust.
- Due to the consent requirement, selling a property under a shared tenancy agreement takes time and effort. A shareholder may be required to go to court if no mutual agreement is reached.
- For tenant(s) who do not invest equally in a property, joint tenancy remains risky. For example, if one tenant contributes 70% and another 30%, ownership will be divided equally regardless of the investment. Also, when a relationship fails, it causes a dispute.
What Is Tenant in Common?
“Tenants in common” is ownership in which several people hold separate shares of real property, and the shares are dealt with separately. For instance, two owners can have 50/50 percent ownership of a home, or one co-owner can own 70 percent and the other 30 percent. Those on the title can entirely define the division of ownership, and no party has a claim to another person’s share following that person’s death.
With tenancy in common, each owner can leave their share of the property to heirs through a Will. For instance, if two couples bought a home jointly and each person owned 25 percent of the property, following the death of one of the couples, the surviving spouse can pass on a 50 percent share in the property to their kids.
It’s also possible for owners to sell their shares at any moment throughout their lifetimes. Though each owner has a separate ownership share in the property, they will need to work together and reach an agreement to sell it unless they can find a buyer ready to share ownership on the title.
- Under tenancy in common, the share percentage is defined; thus, if you have invested a lot of money, you’ll own a bigger share percentage of the property.
- If a deed of trust is written down, it is much easier to sell, divide, and pass on your shares in the property.
- In case of the death of a tenant, the share goes to their estate rather than the co-tenant(s).
- It’s beneficial for tax rebates as each tenant’s respective investments are written in the deed.
- Tenancy in common can be a great way to pass down family property to future generations. It allows different family members to share property ownership and collectively choose its usage and management.
- Tenancy in common usually costs much when it comes to legal fees.
- It can be hard to sell a share in a tenancy in common since the co-owner must look for a buyer willing to buy their share of the property and who other co-owners accept.
- Since each owner has an undivided interest in the property, disputes among co-owners can arise about managing the property.
What’s the Difference Between Tenants in Common and Joint Tenants?
The primary difference between joint tenants and tenants in common is that joint tenants benefit from the right of survivorship. The right of survivorship ensures that when one owner dies, the property passes to the other surviving owner(s) without having to go through the court process of probate. This process involves a court distributing the deceased owner’s property and can be long and costly. Married couples often choose to own property as joint tenants to avoid probate. However, some own as tenants in common to claim a higher First-Time Home Buyer’s credit.
On the other hand, tenants in common may freely decide the share of each individual’s property. In contrast, joint tenants each own an equal share in the property (50/50). Each tenant-in-common is entitled to pass their share of the property on to another person via a will, a real estate transfer, or even sell it.
However, upon the death of one of the tenants-in-common, their share of the property passes according to their will or the rules governing property owners who die without a written will. The property will then have to go through probate and be subject to probate fees.
Factors to Consider When Choosing Between Joint Tenants Vs. Tenants in Common
1. Ownership Share
Ownership share refers to the percentage of property held by each owner. When it comes to joint tenants vs tenants in common, ownership share determines how the property is divided among owners.
In tenant in common, it has more flexibility in determining their ownership share; one owner may hold 70% of the property, while the other holds 30%. Conversely, each owner must hold an equal ownership share in joint tenants.
2. Right of Survivorship
Right of survivorship usually refers to the legal right of a tenant to inherit the share of a co-owner who dies. In joint tenancy, if one of the joint tenants dies, their share is immediately transferred to the surviving joint tenant(s) without going through probate. On the other hand, in the tenancy in common, when one of the owners passes away, their share of the property is transferred to their beneficiaries or heirs, as determined by their will or the laws of intestacy if a will wasn’t drafted.
3. Control Over the Property
This refers to the ability of the co-owners to make decisions regarding the property, such as transferring or selling ownership. In a tenancy in common, each co-owner has the right to transfer or sell their ownership share without the consent of the other co-owner(s). On the other hand, all co-owners must agree to transfer or sell the property in joint tenancy. This means that each joint tenant has less control over their share of the property,
4. Tax Implications
The tax implications of owning property as joint tenants vs. tenants in common can differ, and it’s crucial to understand these implications when choosing between the two.
Generally, when a property is sold, capital gains tax is usually applied to the increase in its value since it was acquired. In Canada, each property owner is required to pay capital gains tax on their share of the property.
However, when a joint tenant passes away, their share of the property is immediately passed on to the other tenant or tenants. There is no need for a formal probate process. Therefore, no capital gains tax is due when the property changes ownership. Conversely, when a tenant in common passes away, their share of the property is transferred to their beneficiaries or heirs, which triggers property taxes, including capital gains tax.
5. Estate Planning
This refers to deciding how your assets will be distributed after your death. If estate planning is a major concern, tenancy in common can be a better option as it allows for greater flexibility in transferring property shares to beneficiaries or heirs. Conversely, the joint tenancy automatically transfers ownership to the surviving joint tenant or tenants, which might not align with an owner’s wishes for their estate.
If you want more info on common or joint tenancy tenants, please get in touch with our legal team. We offer free initial consultations with no pressure or obligations.
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