When two or more persons are purchasing property, one of the decisions to be made by the persons purchasing is how to hold the property.

On most occasions, married people and young couples almost automatically choose joint ten-ancy, that is to say, the application of the principle of survivorship or that persons alive become the owners. No will is needed to resolve the ownership of two or more joint tenants. On the other hand, Tenancy-in-Common pro-vides that each person can make a will regarding their share.

Surviving joint tenant

This is always very important, especially when you believe that the surviving joint tenant is not worthy of automatically getting your share in the property. Below is the story of a wife that is worth reading.

"I have been married since May 2006. Before I got married my husband and I decided to buy a house in 2005. After identifying the property, it was decided that I would pay the deposit and he would pay the legal fees, closing cost and any other expenses related to acquiring the property. After the deposit was made (15 per cent of sale price or $427,500), we were successful in obtaining a mortgage for the remaining portion.

Legal fees

The bank then informed us of the cost for legal fees and my husband came to me and told me that the money he should have received was delayed. So, he is asked me to take care of it until he got this money. After all the paperwork was concluded, the bank informed us that we needed to come up with $150,000 for closing costs. My husband still had not received the money (at least that is what he told me), and not wanting to lose the property I paid the money.

After moving into the property, my husband seemed to always have financial problems. For the first year I paid the mortgage as well as the bills.

In September 2006 we decided that he would take care of the mortgage. That same month I started addition of a bedroom bathroom, laundry room, kitchen and patio, costing $1.5 million. Each month I would ask my husband about the mortgage and he would assure me that it was taken care of.

You can imagine my surprise when the bank called to say the mortgage was several months in arrears, not wanting to lose the house I cleared it. This happened three times, the most recent being July 2008. My husband is tardy in paying the mortgage. He does not give me any financial support because of an external factor which he has brought into the picture. We have a joint tenancy, can this be changed to Tenancy-in-Common and do I have grounds on which to have a ratio reflecting each person's contribution? I have been told several times to get out of his house so he can carry home his child as his name is only an attachment to mine, but his child is the 'real thing'."

Purchase of the premises

The short answer is that you can change the tenancy, and in the circumstances you will be well advised to do so. If true, you would have made your fair share of contribution to the purchase of the premises, and one important way to protect this contribution is to ensure that your husband does not automatically get your share, in the event of your death. Of course, you are also saying that you have no interest in his share in the event of his death. Now, whether you will be able to get over 50 per cent and have that endorsed on title will require some understanding between you and your husband, unless you ask a court to determine your con-tribution or share in the premises and have that percentage en-dorsed on the title when changing the tenancy.

From the facts outlined, it is obvious that the marriage is under some strain with the inclusion of what you call a third party, a child. The child's mother is also another factor or party to consider. You may also wish to use the opportunity to get some coun-selling from an approved coun-sellor under the Marriage Act. In my view you need to see a lawyer and a counsellor. You need both and, thus, you must act now.

Keith N. Bishop is an attorney-at-law and partner in the firm of Bishop & Fullerton. He may be contacted by email at knbishop@gmail.com or by text at 770-2871.