Hi, my name is Shilpa Mehta and I am a lawyer with Feldstein Family Law Group.
Today I am going to talk to you about potential issues that may arise from your interest in a jointly held home, if the proper steps are not taken to protect your rights, during the early stages of your family law matter.
When a couple makes an investment in a home, they often decide to take ownership of the property as joint tenants. While property and real estate law are beyond the scope of my practice, I can provide you with a cursory definition of joint tenancy. It is this:
Joint tenancy is a special form of ownership by two or more persons of the same property. The individuals, who are called joint tenants, share ownership of the property. One of the hallmarks of joint tenancy is the right of survivorship. This right provides that if any one of the joint tenants dies, the remainder of the property is transferred to the survivor.
During their relationship, couples often make an informed decision when taking title to their home as joint tenants; the assurance that in the event of one person’s untimely demise, the deceased’s interest will pass to the surviving partner is what draws couples to this type of ownership in the first place. However, this may not be the desired outcome in the event of a separation. Specifically, upon the dissolution of a relationship, either party may want that his or her interest in the home be transferred to another family member or third party as opposed to the ex-partner. In order to protect your interest in the home, you must sever the joint tenancy and take title of the property as tenants in common. As tenants in common, each person owns a half of the home and either party can leave their share to someone in their will or sell it.
At this point, many viewers may be thinking why any of this is even necessary when you and your partner have already decided to sell the home and equally divide the net proceeds of sale. Well, in February of 2012 the Court of Appeal for Ontario passed down their decision in the matter of Hansen Estate v. Hansen where the husband passed away while negotiating a resolution to his matrimonial matter. Because nothing was done to sever the joint tenancy in the matrimonial home, the deceased’s widow and children took part in costly and time consuming litigation in order to realize their rights and entitlements to this property.
To avoid the possibility of this type of conflict in your own matter, it is most prudent to act proactively and take the necessary steps to secure your interests.
If you would like to learn more about this or any other family law topics, visit our website at www.separation.ca. If you need legal advice about your own situation, please call us at 905-431-2214 to schedule an initial consultation.
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