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Balancing Competing Interests in Property Disputes After a Breakdown of a Relationship

The British Columbia Supreme Court's recent case ruled by Justice B. Hardwick, established that even where a property was registered at the "Land Title Office" as being held in joint tenancy, this joint tenancy can be severed by one owner, and thereby converting it into a tenancy in common. Consequently, when one of the owners passes away, their share of the property will not automatically pass to the surviving owner(s). Joint tenancy is a type of ownership where two or more people jointly own a property, and when one owner dies, their share automatically passes to the surviving owner(s). However, the joint tenancy of a property can be severed prior to the one's death which means when they die, their share will not automatically pass to the surviving owner(s).

In this case, the Plaintiff is seeking an order to declare the end of the joint tenancy of a property that was owned by his mother and deceased father. The Defendant (Plaintiff’s mother) and the Plaintiff's father were in a common-law relationship, and they had purchased the property together in 2002. The property was registered under joint tenancy between the couple.

The key points were that the Defendant and the deceased father separated in 2006 and following their separation, the deceased father remained living at the Property and the Defendant lived elsewhere. The court granted the Plaintiff's application, stating that the joint tenancy of the property was severed prior to the father's passing. The evidence provided showed that the Defendant and deceased had an acrimonious separation, and each had been making independent claims in relation to the property. The court's decision was based on the evidence provided, which showed that the joint tenancy was severed prior to the father's passing.

This case highlights the importance of understanding the legal implications of joint tenancy and tenancy in common in family law matters, especially in cases involving acrimonious separations or divorces. It also demonstrates potential consequences of failing to properly sever a joint tenancy in a property during a separation or divorce, and the importance of seeking legal advice to ensure that property rights are protected and preserved. It also illustrates the dynamic nature of family and property law, as legal principles and precedents continue to evolve and adapt to new societal norms and changing family structures.

Preskar Estate v. Wagner, [2023] B.C.J. No. 96, British Columbia Supreme Court, B. Hardwick J., January 19, 2023. Digest No. Law360CDA-March62023002

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