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Expert: Emma-Lisa Raffo Date: 6/24/2007 Subject: tenant in common
Question We are tenants in common on lake front property in BC for the past 12 years with a man that is now trying to time restrict our useage. He wants it one month and give us one month. The intent when we all bought it was to all use it at all times. The place is big enough. Can he legally time restrict us through the courts? Secondly, can we partition the property when it is not legally subdividable but big enough to give each of us a resonable amount of space. WE have 205 feet waterfront which would give each party 100+feet. Most lots on the lake are only 50.
Answer Elizabeth,
As tenants in common in BC, each ‘tenant’ is entitled to possession. However unlike joint tenants who each own an undivided interest in the land, tenants in common may own different shares in their property, i.e. two may have a quarter share, and one may have a half share.
If you and this fellow all have an unequal share, it would be reasonable to expect that the use and enjoyment could be shared accordingly. If he has a large share, in fairness then he might have more rights to the land but it would depend on your original agreement and the generosity of the parties involved.
Did all three of you purchase the land at the same time or did you acquire your interest through an inheritance or other form of interest? This would definitely affect your rights and status.
If the three of you purchased the land together and all three names are the only ones on title, you are not tenants in common but in fact joint tenants which gives each of an undivided interest in the land. To be joint tenants means:
- unity of time (receiving your interest all at the same time)
- unity of title (obtaining your interest through same document)
- unity of interest (each having an identical interest in land)
In the eyes of the court he cannot restrict you because you each would own the land equally (one party cannot alter the land without consent of the other joint tenants).
The best advice I can offer is for you to take your original purchase agreement to your lawyer and have them advice you further for your unique situation. A local realtor or your lawyer can also pull the city plans which will also clarify if you can partition your interests or the land itself.
In addition, personally stop in and check with city hall on the zoning of the land in question to confirm any restrictions on sub-dividing. There may also be restrictions on what types of structures can be built, height, width and depth that should be confirmed before you get too involved in fighting with your co-owner. If yours is the only lot of its size with only one structure and the rest are much smaller, it might be possible to petition to change the zoning. It can be a bit of process, but worthwhile if you end up with two lakefront homes to enjoy!
