Tenants in common of an item property may own equal or unequal shares, sometimes expressed in percentages.
Each tenant in common may sell his share to another.
In joint tenancy, the share of a joint tenant who dies goes to the surviving joint tenants until there is but a single survivor, at which time the sole survivor owns the whole.
Not so with tenants in common where when such a property owner dies, his share goes to his estate.
As was stated in The Law of Real Property:
"Each tenant in common has a distinct share in property which has not yet been divided among co-tenants. Thus tenants in common have quite seperate interests. The only fact which brings them into co-ownership is that they both have shares in a single property which has not yet been divided among them. While the tenancy in common lasts, no one can say which of them owns any particular parcel of land.
"The size of each (co-tenant's) share is fixed once and for all and is not affected by the death of one of his companions. When a tenant in common dies, his interest passes under his will or intestacy, for his undivided share is his to dispose of as he wishes."
Another feature of tenancy in common: all owners are allowed to use the whole of the property in common with all tenants in common.
In R v Uniacke, Justice Martin of the 1944 Saskatchewan Court of Appeal wrote:
"The words joint tenants and tenants in common have special meanings.
"A joint tenancy is created where the same interest in real or personal property is passed by the same conveyance to two or more persons in the same right or by construction or operation of law jointly, with right of survivorship, i.e., the right of the survivor or survivors to the whole property.
"A tenancy or ownership in common arises when owners have community of possession but distinct and several titles to their shares which need not necessarily be equal; and there is no right of survivorship between owners in common."
REFERENCES:
- Megarry, R., The Law of Real Property (London: Sweet & Maxwell, 2000, 6th Edition), page 481.
- R v Uniacke 4 DLR 297 (1944)