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Can you sever a Joint Tenancy by a “Zombie” Transfer?

The Joint Tenancy is a convenient device that has been part of the common law since feudal times. It’s also quite simple to use and not difficult to understand. So it’s surprising that its meaning and operation are contested regularly.

One of the main incidents of a joint tenancy is the right of survivorship. That means that when one of two joint tenants dies her share devolves upon the survivor by operation of law. Another incident of a joint tenancy is that a joint tenant has the right to sever it. When you do that, you turn the tenancy into a tenancy in common[1] and when you do that you destroy the right of survivorship. Severing a joint tenancy is not difficult to do. In Hansen v. Hansen[2] the Ontario Court of Appeal outlined the three ways in which you can do it:

Rule 1. unilaterally acting on one’s own share, such as selling or encumbering it;

Rule 2. a mutual agreement between the parties; and,

Rule 3. any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common.

A couple of years ago I wrote a blog on the effect of severing a joint tenancy, “An Irrevocable Right of Survivorship”,[3] which considered the case, Pohl v. Midtal.[4] That case held, incorrectly, in my view that a joint tenant could not sever the tenancy because the other joint tenant held an irrevocable right of survivorship.[5]

In the recent case, Thompson v. Elliott Estate,[6] the court had to decide whether the first method of severing a joint tenancy had been successful. Byron Thompson (“Thompson”) and Alitha Elizabeth Elliott (“Elliott”) were married and held title to their matrimonial home as joint tenants. Each had children from a previous marriage. The marriage was not a happy one and Elliott was contemplating ending it. In October 2106 Elliott was admitted to hospital because of complications from her diabetes. In March 2017 she contacted a lawyer to see her in hospital to make a new will, because she had decided to leave her estate to her children, rather than to Thompson. She told the lawyer that her husband was verbally abusive to her and she was afraid of him. The lawyer learnt that her main asset was her half interest in the home. Elliott made it clear to the lawyer that she wanted to sever the joint tenancy so that her share would go to her children. The lawyer prepared the will and returned two days later to have it and the Acknowledgement and Direction to terminate the joint tenancy signed. The lawyer was informed that Elliott had died on 15 April 2017. When he retrieved Elliott’s will file, he discovered that the transfer severing the joint tenancy not been registered and had been left in the will file in error.

That’s where the story becomes interesting. The lawyer’s office took steps to register the transfer and it did so on 18 April 2017, three days after Elliott’s death. To do that and to have the registration accepted by the Land Registry Office, the lawyer had to make false statements to the effect that, as of the date of registration, Elliott was at least 18 years old, a spouse, and was transferring the property to herself to sever a joint tenancy. Subsequently, Elliott’s children wanted to sell the matrimonial home and approached Thomson to see if he wanted to sell his 50% interest in it. That’s when he discovered what happened. By agreement, the property was sold and the net proceeds were being held in trust to await the outcome of Thompson’s application to determine his entitlement to the proceeds. When selling the property the estate trustees and the lawyer again had to make correct statements in the transmission application in order to transfer the property to the purchaser. They did not do so, but stated instead that Elliott died 19 April 2017, one day after the registration of the transfer to sever the joint tenancy.

A staff member in the lawyer’s office testified that she had placed the transfer document in the wrong file through an oversight and she registered the document immediately when she discovered it.

Post mortem registrations of transfers such as those in this fact situation are known as “Zombie” transfers, in adaptation of the folklore belief that it is possible for a person to be reanimated by magic after her death and the person is then referred to as a “zombie”. Such transfers are not allowed under Ontario’s land titles system.

Justice MacLeod-Beliveau rejected the evidence that the error made on the transmission documents by the estate representatives about the date of Elliott’s death was a typographical error. However she accepted the lawyer’s evidence about his conversations with and the instructions he received from Elliott to the effect that she wanted to change her will and leave her property to her children to the exclusion of her husband and her instructions to register the transfer immediately to sever the joint tenancy to ensure that her husband did not end up with the whole title if she predeceased him.[7]

Her Honour held that it was improper for the lawyer to register the “zombie” transfer after Elliott died and to make false and inaccurate statements in order to register the transfer.[8]

That then raised the question when the transfer became effective. Would it become effective only on the date of registration (assuming that had been done before Elliott’s death) or was it effective when Elliott signed the documents necessary for the actual registration and had “fully and unconditionally relinquished control of the documents to sever the joint tenancy”?[9] Justice MacLeod-Beliveau reviewed the case law on this point and concluded that “it is the delivery, and not the actual registration of the deed/transfer that determines if a joint tenancy has been severed”. That is a question of fact. For example, in Re Sammon[10] the Ontario Court of Appeal held that there had not been a severance before death. Although Mr. Sammon had executed the deed to sever a joint tenancy, he left it with his lawyer with instructions to register it only after his death, to avoid his estranged wife from discovering what he had done. The court held that in those circumstances there was no “delivery” of the deed because delivery consists of an act (signing the deed) and an intention (that the deed be effective and be registered immediately).

These principles apply also to registration under the land titles system and to the electronic registration system that applies now. In the past a transferor would sign the actual transfer. But under the electronic registration system she does not sign the transfer itself. Rather, she signs an Acknowledgement and Direction addressed to her lawyer requesting him to register the transfer and the lawyer then makes the necessary statements referred to above on behalf of the transferor. Justice MacLeod-Beliveau held that the signing of the Acknowledgement and Direction is the legal equivalent of signing the actual transfer.[11] Her Honour held that “the Acknowledgement and Direction signed by Elliott is indistinguishable from the deed/transfer to which it relates” and that she considered it “to be the signature to affect [sic] the transfer of her interest in land”.[12] Consequently, she rejected the argument that a delivery and severance of a joint tenancy can only take effect on registration.[13]

Her Honour went on to consider older Ontario case law to the effect that an interest in land is transferred as soon as an instrument is signed and a lawyer is instructed to register it, despite statutory provisions that say that in interest in land is transferred upon registration. Thus, for example, in Hooper v. Hooper[14] the Ontario Court of Appeal held that execution and delivery of the documents to transfer land confers title in equity until registration. Consequently, she held: “The totality of the caselaw supports the principle of law that the intention and validity of an instrument as between the parties is determined on the date of execution rather than the date of registration”.[15]

That left the question whether the transfer could be registered after Elliott’s death. As already noted, a “zombie” transfer is impermissible in Ontario and so Justice MacLeod- Belliveau found that the lawyer improperly registered the transfer on the basis of false statements.[16] However, this did not leave Elliott’s children without relief. What the lawyer should have done on discovering the error, wat to bring an application requesting a certificate of pending litigation, a declaration of an interest in land, and a vesting order under s. 100 of the Courts of Justice Act.[17] Such an order is binding on the land registrar.[18] Her Honour stated:

91      A court application to obtain a vesting order for a declaration that the estate of Ms. Elliott and Mr. Thompson each held a 50% interest in the Cobourg property is the proper method of resolving the inadvertence and error of the non-registration of the transfer severing the joint tenancy by the lawyer prior to Ms. Elliott’s death, rather than the course of action that the lawyer and/or his staff member actually chose to take in this case, of the registration of an invalid “zombie” deed/transfer after Ms. Elliott’s death.

Of course, such an order was not required, since the property had been sold, so the court made a declaration with respect to the proceeds to the effect that Thompson was entitled to a 50% interest in the proceeds and Elliott’s estate was entitled to the other 50%.

The opportunity conferred by the legislation to seek a vesting order and the “derivative” declaration made by the court with respect to the proceeds effected a good resolution to the matter and it was probably much less expensive than an action in negligence that might otherwise have been launched against the lawyer.

[1]    Actually, that’s not exact. It’s true if there are only two joint tenants and one severs the tenancy. But if there are three or more and one severs the joint tenancy, it will continue in part. For example, if the joint tenants are A, B, and C and A severs the joint tenancy, she will thereafter hold a one-third interest as a tenant in common with B and C. However, the joint tenancy continues between B and C as to the other two-thirds.

[2]    2012 ONCA 112, para. 34.

[3]    http://welpartners.com/blog/2018/02/an-irrevocable-right-of-survivorship/

[4]    2017 ABQB 711.

[5]    Indeed, in an earlier case, Midtdal v. Pohl, 2014 ABQB 646, the court had held that the other joint tenant held such an irrevocable right. The later case did not explain the difference in the spelling of the name of one of the parties.

[6]    2020 ONSC 1004.

[7]    Ibid., para. 40.

[8]    Ibid., para. 45.

[9]    Ibid., paras. 42, 71.

[10]   1979 CarswellOnt 722, 22 O.R. (2d) 721 (C.A.).

[11]   Thompson v. Elliott, supra, para. 66.

[12]   Ibid., para. 70.

[13]   Ibid., para. 71.

[14]   1953 CarswellOnt 84, [1953] O.R. 753, pp. 758-59 (C.A.).

[15]   Thompson v. Elliott, supra, para. 84.

[16]   Ibid., paras. 85, 86.

[17]   R.S.O. 1990, c. C.43.

[18]   Land Titles Act, R.S.O. 1990, , c. L.5, s. 25(1), (2).

This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.


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