The Ontario Court of Appeal addressed issues concerning rights of survivorship and tenants in common in the recent decision Jackson v. Rosenberg, 2024 ONCA 875, which was released on December 4, 2024. 

Jackson and his partner Taube had both named Rosenberg as the sole beneficiary of both of their estates. In 2011, after the death of Taube, Jackson sold his property and with the proceeds purchased a new home. In 2012, he transferred the property from himself as the sole owner to himself and Rosenberg as joint tenants. 

A refresher of property law 
Joint tenancy and tenancy in common are the two forms of property ownership (not to be confused by the use of the word 'tenancy'). They contrast one another by granting various rights to joint tenants and not to tenants in common. One such right associated with joint tenancy is the right of survivorship, under which, the death of one joint tenant immediately triggers the transfer of their interest in the property to the other joint tenant(s). Through rights of survivorship, the portion of the property belonging to the deceased joint tenant does not form part of the estate of the deceased joint tenant and is not subject to probate fees.

Tenancy in common, by contrast, does not permit a right of survivorship. Therefore, for a portion of the property to pass to the other tenant in common, the regular hoops and fees associated with obtaining probate and paying estate taxes will be necessary. 

Returning to this case
It was Jackson’s intention to avoid the hassle of probate by making Rosenberg a joint tenant and therefore granting a right of survivorship. Conflict arose, however, when Rosenberg’s husband asked Jackson to move out so that they could upgrade the property to sell the home, the proceeds of which would contribute to a new home for the three of them. Jackson did not like this idea and instead of moving out, legally converted the title to tenancy in common. 

The parties asked the court to define and clarify each of the party’s ownership rights under the amended deed. Moreover, they asked did the right of survivorship remain independent of the joint tenancy? 

At the trial level, in short, the Honourable Judge Robert Charney determined that Jackson terminated Rosenberg’s rights to a full right of survivorship when the deed was converted from joint tenancy to tenants in common. Instead, she retained a right of survivorship to the 50 percent that she held as a tenant in common. 

On appeal, the three judges took the decision a step further. They unanimously decided that no right of survivorship would flow despite the ownership initially being a joint tenancy interest. 

To summarize: Rosenberg wound up with nothing. 

Rosenberg argued that once gifted, the right of survivorship could not be taken away from her. The court didn’t accept this submission for two reasons. 

The first reason is simple: the right of survivorship attaches to joint tenancy and does not attach to tenancy in common. Upon the termination of joint tenancy, the right of survivorship ends, and any entitlement to ownership is derived from the will of the deceased. 

The second reason is more complicated and brings us to a second property law lesson: The presumption of resulting trust is a doctrine whereby a transfer of property during the life of the transferor that comes without any requirement to compensate the transferor is presumed to be held in trust by the recipient. An example of this: a parent gifts property to their child to assist with managing the property in the parent’s old age. The effect of a resulting trust is that the property does not belong to the child upon the death of the parent, but instead, returns to the parent’s estate to be distributed in accordance with their will. 

The presumption of resulting trust can however be rebutted with evidence that the transfer was intended to be a ‘no strings attached’ gift. The evidentiary burden can be difficult especially considering one of the parties may be deceased. 

Returning to the court of appeal’s decision, the court stated the principle, writing, “showing that a gift was intended rebuts the presumption of resulting trust”. However, in demonstrating that a gift was intended, it found that an intention to only grant rights to the property upon the death of the owner (i.e., Right of survivorship), is not enough to completely rebut the presumption. 

In simple terms, this means that even if Rosenberg was correct, that Jackson had intended to transfer a right of survivorship, without more proof, the presumption remains that Rosenberg was to hold the property in trust for Jackson and Jackson’s estate. 

The takeaway 
Further to this case, Property owners should outline their intentions precisely in their wills for the property transfers made during their lives. This case stands for the proposition that property law principles be restrictively interpreted, and in light of that potential, individuals should be acutely aware of the bar that must be met to affect their intentions after death.