By Lev Kramar, Integrity Legal Solutions · Calgary, Alberta
Joint tenancy carries the right of survivorship. When one owner dies, their interest passes automatically to the surviving owners outside the estate and outside probate. Tenancy in common carries no survivorship. Each owner holds a defined share, which can be unequal, and that share passes under their will or under Alberta’s intestacy rules. Separately, Alberta’s Dower Act requires the consent of a non-titled married spouse before a homestead can be sold or mortgaged. Dower applies to married spouses only, not to adult interdependent partners.
How you take title is decided in about fifteen seconds at a signing appointment, and it determines what happens to the property when one of the owners dies. It is the shortest conversation in a real estate closing with the longest consequences.
There are two ways to hold title with someone else in Alberta, and one additional rule that catches sole owners who are married.
What is joint tenancy?
Joint tenants hold an equal, undivided interest in the whole property. Nobody owns a specific half. Everybody owns all of it, together.
The defining feature is the right of survivorship. When one joint tenant dies, their interest passes automatically to the surviving joint tenants. It does not form part of the deceased owner’s estate, it is not distributed under their will, and it does not go through probate.
That is the appeal. On the death of one spouse, the surviving spouse becomes the sole owner by filing a transmission at the Land Titles Office with a death certificate. There is no estate administration for the property, no probate fee on its value, and no delay.
The corresponding limitation is control. Joint tenants cannot sell or mortgage without acting together, and a joint tenant cannot leave their interest to anyone by will. The survivorship right overrides the will every time.
What is tenancy in common?
Tenants in common each hold a defined share. Those shares can be equal or unequal. Two people who contributed 70 percent and 30 percent of the purchase price can register title in those proportions.
There is no right of survivorship. When a tenant in common dies, their share forms part of their estate and passes under their will, or under Alberta’s Wills and Succession Act if there is no will. The surviving co-owners do not automatically receive it, and they may find themselves co-owning with a beneficiary they did not choose.
Each tenant in common can sell, mortgage, or gift their own share without the consent of the others, unless a co-ownership agreement restricts it.
Which one should you choose?
Joint tenancy fits spouses and long-term partners who intend the survivor to own the home outright. The automatic transfer is simple, fast, and avoids probate on the property.
Tenancy in common fits everyone else: friends buying together, siblings, business partners, investors with unequal contributions, and second marriages where each spouse has children from a prior relationship and wants their share to go to those children rather than to the new spouse.
If you take title as tenants in common, you need a will. Without one, your share is distributed under the Wills and Succession Act, which may produce an outcome nobody involved wanted.
If you buy with someone other than a spouse, you also want a co-ownership agreement. It should address who pays what, what happens if one party wants out, how the property is valued on a buyout, and what happens if one owner defaults on their share of the mortgage.
Adding a child to title
Parents frequently add an adult child to title as a joint tenant to avoid probate. It works, and it carries real risks that are rarely explained at the time.
- The child’s creditors can reach the property. So can a matrimonial property claim if the child separates.
- You cannot sell or mortgage without the child’s signature. If the relationship changes, you have given up control of your own home.
- If there are multiple children, adding one to title effectively gifts them the property on your death, regardless of what your will says about dividing your estate equally.
- The transfer may trigger capital gains consequences where the property is not the child’s principal residence.
- Alberta courts regularly deal with disputes over whether a parent intended a true joint tenancy or merely an administrative convenience. The presumption of resulting trust can operate to defeat the survivorship the parent thought they had created.
This is an estate planning decision, not a real estate one. Get advice on both sides before signing the transfer.
What are dower rights in Alberta?
Alberta’s Dower Act protects a married person whose spouse is the sole registered owner of the family home.
Where a married person owns a homestead in their name alone, the non-titled spouse has dower rights. Those rights do two things. First, the owner cannot sell, transfer, lease, or mortgage the homestead without the written consent of the non-titled spouse. Second, if the owner dies, the surviving spouse is entitled to a life estate in the home.
The consent is given on a prescribed form, and the non-titled spouse must acknowledge it separately from the owner, before a lawyer. That is why a spouse who is not on title still has to attend the lawyer’s office at closing.
Two points that surprise people:
- Dower applies only to legally married spouses. Adult interdependent partners, which is Alberta’s term for common-law relationships, are not covered by the Dower Act. The Alberta Law Reform Institute has recommended replacing the legislation to extend protection to them, but the current Act remains in force.
- Dower applies regardless of who paid for the property or when it was acquired. A home bought before the marriage is still a homestead if either of the spouses has lived in it.
If both spouses are on title, dower does not arise, because there is no non-titled spouse to protect.
What if the title does not specify?
Where two or more people are registered on an Alberta title and the tenancy is not specified, the default is tenancy in common. If you intend joint tenancy with survivorship, it must say so on the title. Check your certificate of title rather than assuming.
Can you change how title is held?
Yes. A joint tenancy can be severed and converted to a tenancy in common. Under Alberta law this can be done by one joint tenant transferring their interest to themselves, by agreement between the owners, or by conduct showing the owners have treated the property as a tenancy in common.
Severance is common on separation, where neither party wants the other to inherit the whole property by survivorship while the division of assets is unresolved. It is registered at Land Titles and takes effect on registration.
Converting the other direction, from tenancy in common to joint tenancy, requires a transfer signed by all owners.
Frequently asked questions
Does joint tenancy avoid probate in Alberta?
For the property held in joint tenancy, yes. The interest passes by survivorship outside the estate, so its value is not included in the estate for probate purposes. Other assets still go through the estate normally.
Can I leave my share of a jointly owned home to my children?
Not if you hold it as joint tenants. Survivorship overrides your will. If you want your share to pass under your will, you need to hold title as tenants in common.
Do common-law partners have dower rights in Alberta?
No. The Dower Act applies to legally married spouses only. Adult interdependent partners may have claims under other legislation, but they do not have dower rights over a homestead.
What happens if a sole owner sells without spousal consent?
A disposition of a homestead without the required dower consent is an offence under the Dower Act and exposes the owner to penalties and to a claim by the spouse. Land Titles will not register the transfer without the consent or a court order dispensing with it.
Can unequal shares be registered on an Alberta title?
Yes, as tenants in common. The shares are registered as fractions and should reflect what the owners actually agreed. Joint tenancy cannot hold unequal shares.
What happens if a tenant in common dies without a will?
Their share is distributed under Alberta’s Wills and Succession Act. Depending on the family structure, that can mean the share is split among a spouse and children, leaving the surviving co-owners sharing the property with people they have never met.
Talk to Lev
Call (403) 466-6580 or email Lev@integrity-legal.ca to book a consultation. We close real estate transactions across Alberta – including Calgary and surrounding areas, with 1-2 week turnarounds when timelines are tight.
Lev Kramar is the principal lawyer at Integrity Legal Solutions in Calgary. He focuses on residential and commercial real estate, with a particular interest in leasehold and new-build closings, including transactions at Taza Park on Tsuut’ina Nation land. Integrity Legal Solutions serves clients across Alberta, with a reputation for fast funds movement and direct, plain-language communication.
Phone: (403) 466-6580 · Email: Lev@integrity-legal.ca · 1550 5 St SW #300, Calgary, AB T2R 1K3
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