1. Introduction
It is surprising that the issue of severing a joint tenancy arises with fair regularity – surprising because the right to sever is a well-recognized incident of the law of joint tenancy. But to sever a joint tenancy you must do so effectively and follow the established rules. I have written about severance on several occasions, but it is not amiss, I think, to consider it anew. The issue arose again in Preskar Estate v Wagner.[1]
2. Facts
Peter Preskar and Lynda Wagner (the ‘Defendant’) began to live in a marriage-like relationship in 1994. They bought a house (the ‘Property’) in Vernon in 2002 and the title was registered in their names as joint tenants. Their son, Kailar Preskar (the ‘Plaintiff’) was born in 1999. In 2006 the Defendant and Peter separated. Peter continued to live in the Property, while the Defendant lived elsewhere.
In 2007 Peter began a family law proceeding against the Defendant and filed a certificate of pending litigation against the Property. In the same year the Defendant filed a counterclaim in which she claimed a trust interest in the Property and sought an order for partition of the Property. She also filed a certificate of pending litigation against the Property. Peter died in January 2020, having made his Will in 2017 in which he appointed the Plaintiff his executor and made him his primary beneficiary by leaving the residue of the estate to him.
The Defendant transferred title to the Property to herself as surviving joint tenant in March 2020. The Plaintiff them brought these proceedings. In it he sought a declaration that the joint tenancy had been severed, and a declaration that the Plaintiff and Defendant owned the Property as tenants in common. The Defendant did not file a counterclaim in these proceedings.
3. Analysis and Judgment
Justice Hardwick began her analysis by noting that since Peter and the Defendant were not married and had separated before 18 March 2013, they were unable to make claims with respect to property under the former Family Relations Act.[2] Nor, could they make claims under the Family Law Act,[3] since it took effect on that date. Thus, they were restricted to making claims under the common law or equity or under the Partition of Property Act.[4]
In determining how a joint tenancy can be severed or, if severance has been attempted, whether the attempt was successful, our courts almost invariably begin by considering the leading case, Williams v Hensman,[5] in which Vice-Chancellor Page Wood set out the principles as follows:
A joint tenancy may be severed in three ways: in the first place, an act of any one of the persons interested operating upon his own share may create a severance as to that share. The right of each joint-tenant is a right by survivorship only in the event of no severance having taken place of the share which is claimed under the jus accrescendi. Each one is at liberty to dispose of his own interest in such a manner as to sever it from the joint fund – losing, of course, at the same time, his own right to survivorship. Secondly, a joint tenancy may be severed by mutual agreement. And, in the third place, there may be a severance by any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common. When the severance depends on an inference of this kind without any express act of severance, it will not suffice to rely on an intention, with respect to the share, declared only behind the backs of the persons interested. You must find in this class of cases a course of dealing by which the shares of all the parties to the contest have been affected …
In passing, I note that there are other ways in which a joint tenancy can be severed, although none of these were relevant to the Preskar case.[6] In fact, the only one that was relevant in that case was the third way mentioned in Williams v Hensman: ‘any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common’.
In considering the law of severance, Justice Hardwick refers to a number of leading cases and quotes extensively from two of them, namely, Farley v Pearlson,[7] and Zeligs v Janes.[8] In the latter case, Dickson JA, with whom the other two members of the panel agreed, followed[9] the leading Ontario case, Hansen Estate v Hansen.[10]
It would be supererogatory for me to discuss the quotations from these cases in detail, but I encourage everyone to read the reasons in Preskar because the cases referred to contain learned disquisitions on the law of severance. Instead, I shall focus only on the third way of severance. There has been some discussion about whether the third way is truly distinct from the second. In Kish v Tompkins[11] Southin JA regarded the third way as distinct from the second but thought that the third way involved an estoppel in that, in their dealings with each other, the parties treated the title as being several and not joint. In her view, in those circumstances neither can resile from that position and rely on the right of survivorship as if the title was still joint. Other cases have suggested that the parties’ course of dealings is evidence of an agreement to sever, rather than a separate way of severance.[12]
I believe that the following quotation from Zeligs[13] is helpful to resolve this debate:
53 I agree with Winkler C.J.O. in Hansen Estate[14] that rule 3 is a conceptually distinct method of severance which does not encompass implied agreement. I also agree with Wright J. in Tessier[15] that the parties’ conduct may provide an evidentiary basis from which agreement can be inferred (at para. 12). Nevertheless, mutual agreement, express or implied, is captured by rule 2 and should be analysed accordingly. The question under rule 3 is whether, in the absence of agreement, it would be unjust to permit a party to assert survivorship rights because of the parties’ mutual treatment of their interests.
54 Further, I see no reason to limit Southin J.A.’s rule 3 requirement of “facts which preclude one of the parties from asserting that there was no agreement” to cases involving detrimental reliance, nor do I think she necessarily did so. Rather, in my view, on the facts of Tompkins Estate[16] Southin J.A. considered it just to permit the respondent to assert survivorship rights, given the matrimonial context and the parties’ conduct, which, unlike the conduct at issue in Williams,[17] included no element of reliance. However, on different facts it might well be unjust to do so where co-owners have mutually demonstrated a common intention to treat their interests as several. Depending on the circumstances, this may be true regardless of whether detrimental reliance can be shown.[18]
55 Ascertaining whether a joint tenancy has been severed is a factual question, often determined on the basis of reasonable inference(s). It requires the application of a legal standard to the facts as found by the trial judge….
Justice Hardwick agreed that determining whether a joint tenancy has been severed is a factual question that the judge of first instance must determine. With apparent approval, she also repeated the following quotation from Hansen Estate v Hansen[19] found in the recent case, Mayer v Mayer Estate,[20] which itself followed Zeligs.[21]
39 While the determination under the course of dealing test is an inherently fact-specific assessment, the underlying rationale for rule 3 is that it is a means of ensuring that a right of survivorship does not operate unfairly in favor of one owner (or owners) where the co-owners have shown, through their conduct, a common intention to no longer treat their respective shares in the property as an indivisible, unified whole. For example, in the context of negotiations between spouses who are amid a marriage breakdown, even failed or uncompleted negotiations can lead to a severance because “the negotiation of shares and separate interests represents an attitude that shows that the notional unity of ownership under a joint tenancy has been abandoned”.[22]
Having considered and applied the above law, Justice Hardwick concluded that the parties severed the joint tenancy before Peter’s death because each of them was asserting independent claims to the Property, including a claim by the Defendant for partition. In her view these facts were virtually identical to the factual matrix in Hansen Estate, and they constituted a course of dealing that was consistent with severance.
—
[1] 2023 BCSC 80, 84 ETR (4th) 56.
[2] RSBC 1996, c 128, which was repealed in 2011.
[3] SBC 2011, c 25, that took effect on 18 March 2013.
[4] RSBC 1996, c 347.
[5] (1861), 1 John & H 546 at 557, 70 ER 862.
[6] For example, when one joint tenant feloniously kills the other, the joint tenancy is severed, though only in equity. It continues at law, but equity imposes a constructive trust on the murderer so that he holds title in trust for himself and the estate of the deceased as tenants in common. Similarly, when a joint tenant becomes bankrupt, her interest in a joint tenancy vests in the trustee in bankruptcy and that severs the joint tenancy. See Robert Chambers, The Law of Property (Toronto: Irwin Law, 2021) pp 96-97; Bruce Ziff, Principles of Property Law, 7th ed (Toronto: Thomson Reuters, 2018), p 389.
[7] 2001 BCSC 1237, affirmed 2003 BCCA 37.
[8] 2016 BCCA 280.
[9] Ibid., para 53.
[10]2012 ONCA 112, 75 ETR 3d 19.
[11] (1993), 99 DLR 4th 193 at 199 (BCCA), mentioned in Farley v Pearlson, footnote 7, supra, para 25.
[12] See, e.g., Flannigan v Wotherspoon, 1952 CarswellBC 125, [1953] 1 DLR 768. See also Ziff, footnote 6, supra, p 386, who agrees that the second and third way are distinct but argues that it would be sensible to combine them, since an agreement also qualifies as a course of conduct by which the joint tenants treat their interests as being held in common.
[13] Footnote 8, supra.
[14] Footnote 10, supra.
[15] Tessier Estate v Tessier, 2001 SKQB 399.
[16] Footnote 11, supra.
[17] Footnote 5, supra.
[18] Hansen Estate, footnote 10, supra, paras 35-51.
[19] Ibid., para 39.
[20] 2018 BCSC 2225
[21] Footnote 8, supra.
[22] The quotation is from the 5th edition of Bruce Ziff, Principles of Property Law (Toronto: Thomson Reuters, 2010), p 347 and the court notes that the emphasis is found in the original. The same quotation is found at p 388 of the 7th edition of this work, footnote 6, supra, although it seems that the author takes a more nuanced approach to this issue in the newer edition: see the paragraph following the quotation in the 7th edition.
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Written by: Albert Oosterhoff
Posted on: August 31, 2023
Categories: Commentary, WEL Newsletter
1. Introduction
It is surprising that the issue of severing a joint tenancy arises with fair regularity – surprising because the right to sever is a well-recognized incident of the law of joint tenancy. But to sever a joint tenancy you must do so effectively and follow the established rules. I have written about severance on several occasions, but it is not amiss, I think, to consider it anew. The issue arose again in Preskar Estate v Wagner.[1]
2. Facts
Peter Preskar and Lynda Wagner (the ‘Defendant’) began to live in a marriage-like relationship in 1994. They bought a house (the ‘Property’) in Vernon in 2002 and the title was registered in their names as joint tenants. Their son, Kailar Preskar (the ‘Plaintiff’) was born in 1999. In 2006 the Defendant and Peter separated. Peter continued to live in the Property, while the Defendant lived elsewhere.
In 2007 Peter began a family law proceeding against the Defendant and filed a certificate of pending litigation against the Property. In the same year the Defendant filed a counterclaim in which she claimed a trust interest in the Property and sought an order for partition of the Property. She also filed a certificate of pending litigation against the Property. Peter died in January 2020, having made his Will in 2017 in which he appointed the Plaintiff his executor and made him his primary beneficiary by leaving the residue of the estate to him.
The Defendant transferred title to the Property to herself as surviving joint tenant in March 2020. The Plaintiff them brought these proceedings. In it he sought a declaration that the joint tenancy had been severed, and a declaration that the Plaintiff and Defendant owned the Property as tenants in common. The Defendant did not file a counterclaim in these proceedings.
3. Analysis and Judgment
Justice Hardwick began her analysis by noting that since Peter and the Defendant were not married and had separated before 18 March 2013, they were unable to make claims with respect to property under the former Family Relations Act.[2] Nor, could they make claims under the Family Law Act,[3] since it took effect on that date. Thus, they were restricted to making claims under the common law or equity or under the Partition of Property Act.[4]
In determining how a joint tenancy can be severed or, if severance has been attempted, whether the attempt was successful, our courts almost invariably begin by considering the leading case, Williams v Hensman,[5] in which Vice-Chancellor Page Wood set out the principles as follows:
A joint tenancy may be severed in three ways: in the first place, an act of any one of the persons interested operating upon his own share may create a severance as to that share. The right of each joint-tenant is a right by survivorship only in the event of no severance having taken place of the share which is claimed under the jus accrescendi. Each one is at liberty to dispose of his own interest in such a manner as to sever it from the joint fund – losing, of course, at the same time, his own right to survivorship. Secondly, a joint tenancy may be severed by mutual agreement. And, in the third place, there may be a severance by any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common. When the severance depends on an inference of this kind without any express act of severance, it will not suffice to rely on an intention, with respect to the share, declared only behind the backs of the persons interested. You must find in this class of cases a course of dealing by which the shares of all the parties to the contest have been affected …
In passing, I note that there are other ways in which a joint tenancy can be severed, although none of these were relevant to the Preskar case.[6] In fact, the only one that was relevant in that case was the third way mentioned in Williams v Hensman: ‘any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common’.
In considering the law of severance, Justice Hardwick refers to a number of leading cases and quotes extensively from two of them, namely, Farley v Pearlson,[7] and Zeligs v Janes.[8] In the latter case, Dickson JA, with whom the other two members of the panel agreed, followed[9] the leading Ontario case, Hansen Estate v Hansen.[10]
It would be supererogatory for me to discuss the quotations from these cases in detail, but I encourage everyone to read the reasons in Preskar because the cases referred to contain learned disquisitions on the law of severance. Instead, I shall focus only on the third way of severance. There has been some discussion about whether the third way is truly distinct from the second. In Kish v Tompkins[11] Southin JA regarded the third way as distinct from the second but thought that the third way involved an estoppel in that, in their dealings with each other, the parties treated the title as being several and not joint. In her view, in those circumstances neither can resile from that position and rely on the right of survivorship as if the title was still joint. Other cases have suggested that the parties’ course of dealings is evidence of an agreement to sever, rather than a separate way of severance.[12]
I believe that the following quotation from Zeligs[13] is helpful to resolve this debate:
53 I agree with Winkler C.J.O. in Hansen Estate[14] that rule 3 is a conceptually distinct method of severance which does not encompass implied agreement. I also agree with Wright J. in Tessier[15] that the parties’ conduct may provide an evidentiary basis from which agreement can be inferred (at para. 12). Nevertheless, mutual agreement, express or implied, is captured by rule 2 and should be analysed accordingly. The question under rule 3 is whether, in the absence of agreement, it would be unjust to permit a party to assert survivorship rights because of the parties’ mutual treatment of their interests.
54 Further, I see no reason to limit Southin J.A.’s rule 3 requirement of “facts which preclude one of the parties from asserting that there was no agreement” to cases involving detrimental reliance, nor do I think she necessarily did so. Rather, in my view, on the facts of Tompkins Estate[16] Southin J.A. considered it just to permit the respondent to assert survivorship rights, given the matrimonial context and the parties’ conduct, which, unlike the conduct at issue in Williams,[17] included no element of reliance. However, on different facts it might well be unjust to do so where co-owners have mutually demonstrated a common intention to treat their interests as several. Depending on the circumstances, this may be true regardless of whether detrimental reliance can be shown.[18]
55 Ascertaining whether a joint tenancy has been severed is a factual question, often determined on the basis of reasonable inference(s). It requires the application of a legal standard to the facts as found by the trial judge….
Justice Hardwick agreed that determining whether a joint tenancy has been severed is a factual question that the judge of first instance must determine. With apparent approval, she also repeated the following quotation from Hansen Estate v Hansen[19] found in the recent case, Mayer v Mayer Estate,[20] which itself followed Zeligs.[21]
39 While the determination under the course of dealing test is an inherently fact-specific assessment, the underlying rationale for rule 3 is that it is a means of ensuring that a right of survivorship does not operate unfairly in favor of one owner (or owners) where the co-owners have shown, through their conduct, a common intention to no longer treat their respective shares in the property as an indivisible, unified whole. For example, in the context of negotiations between spouses who are amid a marriage breakdown, even failed or uncompleted negotiations can lead to a severance because “the negotiation of shares and separate interests represents an attitude that shows that the notional unity of ownership under a joint tenancy has been abandoned”.[22]
Having considered and applied the above law, Justice Hardwick concluded that the parties severed the joint tenancy before Peter’s death because each of them was asserting independent claims to the Property, including a claim by the Defendant for partition. In her view these facts were virtually identical to the factual matrix in Hansen Estate, and they constituted a course of dealing that was consistent with severance.
—
[1] 2023 BCSC 80, 84 ETR (4th) 56.
[2] RSBC 1996, c 128, which was repealed in 2011.
[3] SBC 2011, c 25, that took effect on 18 March 2013.
[4] RSBC 1996, c 347.
[5] (1861), 1 John & H 546 at 557, 70 ER 862.
[6] For example, when one joint tenant feloniously kills the other, the joint tenancy is severed, though only in equity. It continues at law, but equity imposes a constructive trust on the murderer so that he holds title in trust for himself and the estate of the deceased as tenants in common. Similarly, when a joint tenant becomes bankrupt, her interest in a joint tenancy vests in the trustee in bankruptcy and that severs the joint tenancy. See Robert Chambers, The Law of Property (Toronto: Irwin Law, 2021) pp 96-97; Bruce Ziff, Principles of Property Law, 7th ed (Toronto: Thomson Reuters, 2018), p 389.
[7] 2001 BCSC 1237, affirmed 2003 BCCA 37.
[8] 2016 BCCA 280.
[9] Ibid., para 53.
[10]2012 ONCA 112, 75 ETR 3d 19.
[11] (1993), 99 DLR 4th 193 at 199 (BCCA), mentioned in Farley v Pearlson, footnote 7, supra, para 25.
[12] See, e.g., Flannigan v Wotherspoon, 1952 CarswellBC 125, [1953] 1 DLR 768. See also Ziff, footnote 6, supra, p 386, who agrees that the second and third way are distinct but argues that it would be sensible to combine them, since an agreement also qualifies as a course of conduct by which the joint tenants treat their interests as being held in common.
[13] Footnote 8, supra.
[14] Footnote 10, supra.
[15] Tessier Estate v Tessier, 2001 SKQB 399.
[16] Footnote 11, supra.
[17] Footnote 5, supra.
[18] Hansen Estate, footnote 10, supra, paras 35-51.
[19] Ibid., para 39.
[20] 2018 BCSC 2225
[21] Footnote 8, supra.
[22] The quotation is from the 5th edition of Bruce Ziff, Principles of Property Law (Toronto: Thomson Reuters, 2010), p 347 and the court notes that the emphasis is found in the original. The same quotation is found at p 388 of the 7th edition of this work, footnote 6, supra, although it seems that the author takes a more nuanced approach to this issue in the newer edition: see the paragraph following the quotation in the 7th edition.
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