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WHAT IS IT? Co-ownership means that two or more people, corporations, or societies own property together. 145 Each has the right to the whole property — that is, there is not a dividing line down the middle of the property where one co-owner's share starts and the other one's ends.
Suppose two people own equal shares in a piece of property. In law, co-ownership between them is called an undivided one half interest — because each of the two is entitled to the use of the whole piece of property, but each of them has only a one half share. 146
The two main types of co-ownership are tenancy in common and joint tenancy. The word tenancy in those phrases has nothing to do with a lease. It comes from the Latin word meaning holding, and so refers to the way title to the land is held. 147 This chapter is concerned only with tenancies in common. 148
AN EXAMPLE. Galiano Conservancy Association is concerned about preserving and protecting land on the island, especially land which is particularly vulnerable.
Mt. Sutil is the most sensitive part of Galiano Island. It has a southwest exposure, and thin, overburdened soil. Part of the Coastal Douglas Fir zone of British Columbia's fourteen ecosystems, it has characteristic Garry Oak grassland.
A 42 acre property on the top of Mt. Sutil came on the market just after the Nature Conservancy of Canada had made a visit to Galiano. As a result, Galiano Conservancy was able to enter into a partnership with Nature Conservancy of Canada to acquire the land. The landowner agreed that the purchase price would be established by an independent appraisal. Then each group raised half of the purchase price, and title was acquired as tenants in common by Nature Conservancy of Canada and Galiano Conservancy Association.
The botanist from the Provincial Museum has visited the property and taken samples to initiate a herbarium for the site. The Conservancy has contacted the Conservation Data Centre and intends to do a complete inventory of the environmental features of the property, which will be managed as a private ecological reserve.
POSSIBLE APPLICATIONS. Two or more conservation organizations could pool their funds and jointly purchase a piece of land. Alternatively, a conservation organization could acquire joint ownership with the current owner of the land. The problem with this approach, however, is that the conservation group would have little recourse if the co-owner acted in ways that were inconsistent with conservation. Moreover, the co-owner could sell or bequeath his or her interest in the land to someone who was less sympathetic to the conservation goal.
LEGAL BASIS. A tenancy in common is created when two or more parties 149 acquire an interest in property together. 150
Each of the co-owners has an undivided interest, which means each has all of the rights of ownership that an owner in fee simple would have, except for the right of exclusive possession — because the co-owner has the right of possession as well.
Each of the tenants in common can sell, give away, or bequeath his or her interest in the property to someone else, without the consent of the other co-owner. The purchaser or beneficiary would get the same undivided interest that the original tenant in common had. The co-owners do not have to have the same share. One may have an undivided one tenth interest, the other may have an undivided ninety percent interest. Or three people could have, for example, undivided interests of fifteen, thirty and 55 percent.
HOW IS IT CREATED? A tenancy in common is created when an interest in
property is conveyed to two or more parties together. 151
The respective rights and obligations of tenants in common for the maintenance of and
payment for the land can be agreed between the tenants in common. 152
HOW LONG CAN IT LAST? A tenancy in common lasts as long as the co-owners, or anyone taking an interest from a co-owner, own the property together. It ends if the tenants in common sell, give, or bequeath their shares to the same person, if one of the tenants in common buys the other's share or if one co-owner brings an action for partition and sale of the land. 153
WHO MONITORS AND MAINTAINS THE LAND? Co-owners have joint responsibility for the land. If one co-owner spends money to maintain or improve the property, however, one owner cannot sue the other to recover the other's share, but would have to wait for an accounting under an action for partition and sale. It is strongly recommended that the co-owners enter a written management agreement.
HOW CAN THE LAND BE PROTECTED OVER TIME? One co-owner can go to court to restrain the other co-owner from destructive use or abuse of the property. However, without a management agreement, the co-owner would not be able to prevent uses that a court considered reasonable, even if they are incompatible with conservation. Also, even if there is a management agreement, it will bind only the parties to it. If a co-owner sells his or her interest or dies, the new co-owner will not be bound by the agreement.
HOW IS IT TERMINATED? If two tenants in common own a piece of land and each wants to get a share of the land, they may be able to divide the land, so that each is the sole owner of parts of the property. 154 Or, the co-owners could sell the property to someone else and take their respective shares of the money. In each case the co-ownership would be terminated.
Or, a co-owner can sell, bequeath or give his or her undivided interest to someone else. That would terminate that person's interest as a tenant in common, though it would not terminate the co-ownership since the person who took the interest in the land would become the tenant in common.
The Partition of Property Act 155 allows one tenant in common to compel the other to divide the property or sell it by going to court for an "order of partition or sale." If the land is partitioned, each person takes title to a piece of the land. If the land is sold, each person gets a proportionate share of the proceeds. 156
145. Groups can have a "legal personality" if they are incorporated as corporations or societies. This is explained in more detail in Chapter 4, Conservation Organizations.
146. The shares of co-owners do not have to be of equal size.
147. It is possible to have a tenancy in common or a joint tenancy in an interest in land which is less than a fee simple. For example, A and B could have a tenancy in common in a life estate for the life of C. But in this chapter we are concerned only with tenancies in common in the fee simple.
148. The main difference in effect between a tenancy in common and a joint tenancy is what happens when one of the co-owners dies. If the land was held in joint tenancy between Harbans and Antoinette, and Harbans dies, Antoinette automatically takes the whole of the property by right of survivorship. Harbans cannot dispose of the property in her will, since Antoinette takes by the right of survivorship. On the other hand if the land was held by Harbans and Antoinette as tenants in common, and Harbans dies, the land goes to the beneficiaries under Harbans' will or, if Harbans did not have a will, to her heirs at law. Since it seems most likely that landowners or conservation organizations would create a tenancy in common rather than a joint tenancy, this is the focus of the chapter.
149. The parties can be persons, societies or corporations.
150. There is a presumption that the co-ownership is a tenancy in common rather than a joint tenancy: Property Law Act, R.S.B.C. 1979, c. 340, s. 11(1).
151. As noted above, when two or more people acquire an interest in property together, there is a presumption that they acquire the interest as tenants in common, rather than joint tenants, unless the document says otherwise.
152. A tenancy in common is a way for two or more parties to hold an interest in land. A tenancy in common is not itself an estate in land. So one tenant in common cannot, for example, put a restrictive covenant on the share of the land owned by the other tenant in common. A restrictive covenant needs to bind the whole piece of property.
153. In British Columbia, the Partition of Property Act, R.S.B.C. 1979, c. 311 allows a co-owner to apply to a court for an order to partition (divide) the land or to sell it and divide the proceeds.
154. Co-owners of land do not have an unrestricted right to divide up the land into smaller parcels. They are subject to laws regarding subdivisions in the Land Title Act and the zoning bylaws applicable to the area. Also, land in the Agricultural Land Reserve may not be subdivided except in accordance with the Agricultural Land Commission Act, subdivisions of land into strata lots is governed by the Condominium Act, and the Islands Trust Act governs subdivisions within the area of the Islands Trust.
155. Partition of Property Act, R.S.B.C. 1979, c. 311.
156. The court has the discretion to order a sale instead of a partition under the Partition of Property Act, s. 7. If the land is partitioned, the order "is deemed to effect a subdivision as defined in the Land Title Act and shall contain an express declaration that the order is subject to compliance with that legislation." Partition of Property Act, s. 17.
