Tenancy in Common vs Joint Tenancy in Newfoundland and Labrador: What Happens to Property When Someone Dies

When a spouse or co-owner of property dies in Newfoundland and Labrador, one question dominates everything else: does this property need to go through the estate — or does it pass automatically to the survivor?

The answer comes down entirely to how the deed was worded when the property was originally purchased or transferred. Two words on a decades-old document at the Registry of Deeds will either save the surviving owner months of court process, or plunge them into full probate administration.

The Core Difference

Joint tenancy means each owner holds an undivided interest in the whole property alongside the other owner(s), with one critical addition: the right of survivorship. When one joint tenant dies, their interest automatically passes to the surviving joint tenant(s) by operation of law — outside of any will, outside of probate, and regardless of what the deceased's estate plan said.

Tenancy in common means each owner holds a distinct fractional share of the property. There is no right of survivorship. When a co-owner dies, their share does not automatically go anywhere — it becomes an asset of their estate and must pass through either the will or the intestacy rules, subject to probate if other estate assets require it.

The practical impact is significant. A surviving spouse who held the matrimonial home in joint tenancy can update the title at the Registry of Deeds with a death certificate and a simple survivorship request. A surviving spouse who held the same home as tenants in common may be forced to share ownership with the deceased's children — or go through full court proceedings to obtain their spouse's share.

How to Find Out Which One Applies

The exact legal wording must be confirmed from the registered deed at the Registry of Deeds, accessible through the CADO portal at cado.eservices.gov.nl.ca.

Look for the specific ownership phrase. Joint tenancy deeds typically read "as joint tenants with the right of survivorship." A deed that is silent on this point, or uses language like "in equal shares," creates a tenancy in common.

One warning: because the Registry of Deeds contains historical conveyances dating to 1825, and rural NL properties frequently changed hands through informal transfers without proper registration, many families genuinely cannot locate the original deed. If that applies, consult a real estate lawyer before making any assumptions.

What Happens With Joint Tenancy

If the property was held in joint tenancy, the deceased's interest passes immediately and automatically to you as the surviving joint tenant at the moment of death — not at the moment you file the paperwork, and not at the moment a court approves anything. The right of survivorship is instantaneous.

However, the title at the Registry of Deeds still needs to be formally updated to reflect your sole ownership. This is not optional — it is required before you can sell the property, refinance it, or transfer it to anyone else.

To update the title, you file a survivorship application at the Registry of Deeds accompanied by:

• The death certificate from the Vital Statistics Division of Digital Government and Service NL
• A statutory declaration or affidavit confirming the survivorship and the nature of the joint tenancy
• The applicable registration fees

This process is straightforward compared to probate but still requires precise documentation. The Registry of Deeds will reject submissions that lack a proper property description or the required forms. Death certificates ordered within the first year of death are issued free of charge by Service NL — order multiple copies.

The significant advantage here: joint tenancy property is excluded from the probate estate entirely. It does not count toward the probate fee calculation (based on $60 for estates under $1,000, plus $0.60 per $100 above that). It bypasses the Supreme Court entirely.

What Happens With Tenancy in Common

If the property was held as tenants in common, the deceased's fractional share becomes part of their estate. What happens next depends on whether there is a will.

If there is a will: the share passes to whoever the deceased named as beneficiary. If that is you, the executor must eventually execute a Deed of Assent — a specific legal instrument required under the Chattels Real Act to formally transfer the property from the estate to the beneficiary. Obtaining a Grant of Probate alone does not transfer the title. The Deed of Assent must be drafted, executed, and registered at the Registry of Deeds before the transfer is complete. This is one of the most commonly missed steps in Newfoundland and Labrador estate administration.

If there is no will: the deceased's share of the property passes according to the Intestate Succession Act. This is where surviving spouses face genuine financial danger. Unlike most Canadian provinces, Newfoundland and Labrador has no preferential share protecting a surviving spouse. If the deceased left a spouse and children, the estate is divided by percentage — the spouse receives one-third if there are multiple children, the children share the remaining two-thirds. A surviving spouse could end up co-owning the property in tenancy in common with the deceased's adult children, who can legally force a sale.

The process of transferring a tenancy in common share through the estate requires full engagement with the Supreme Court of Newfoundland and Labrador if the estate otherwise requires probate. The share is listed on the Inventory (Form 56.10A) at its appraised market value and is subject to probate fees. Once the court issues Letters of Probate or Letters of Administration, the executor can proceed with the Deed of Assent.

The Matrimonial Home Exception

Under the Family Law Act of Newfoundland and Labrador, the matrimonial home receives special statutory protection regardless of how the deed is worded. Even a tenancy in common on a matrimonial home can be overridden by the surviving spouse's Family Law Act rights.

There is also a two-year limitation period: a former spouse divorced before the deceased's death may still have surviving property division claims under the Family Law Act that supersede the intestacy rules. If the matrimonial home was held as tenants in common and you are the surviving spouse, consult a solicitor before the estate distribution is finalized.

Practical Steps for Executors and Survivors

If you are settling an estate in Newfoundland and Labrador and the deceased owned real property:

1. Pull the registered deed from the CADO portal at the Registry of Deeds
2. Confirm whether the ownership language creates joint tenancy or tenancy in common
3. If joint tenancy: prepare a survivorship declaration and file at the Registry of Deeds with the death certificate
4. If tenancy in common: include the deceased's share on the probate inventory, obtain court authority, then execute and register a Deed of Assent to transfer the share to the beneficiary
5. Notify the municipal tax assessment office once the title is updated — cities like St. John's and Corner Brook require a valid Deed of Assent to amend their assessment rolls

Getting this step wrong creates a break in the chain of title that can make the property unsellable for decades. Future owners encounter a gap — the property appears to still belong to a deceased person at the Registry — and clearing it requires reopening the estate.

The complete estate settlement process for Newfoundland and Labrador, including the Deed of Assent procedure and Registry of Deeds filing requirements, is covered in detail in the When Someone Dies in Newfoundland and Labrador — Estate Settlement Guide.

The Registry of Deeds in Newfoundland and Labrador is administered through the CADO e-services portal (cado.eservices.gov.nl.ca). For property title searches, contact a local real estate solicitor or a professional title search firm familiar with the province's historical conveyancing records.

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