Ordinarily, one would think that the proceeds of the sale of property should be divided 50/50 in the case of “Joint Tenancy”.
However, that was not the case in Kamermans v. Gabor, a decision made by Mr. Justice Heeney and released on 6 September 2018.
It should be made clear at the outset that this was a “living together” arrangement and not a married couple, otherwise, the result may have been different.
Michelle Kamermans and David Gabor lived together for a period of time. As luck would have it, they came across a property which they decided to acquire. It needed an awful lot of work. They bought the property and title was registered in their joint names as “joint tenants”. That arrangement includes the right of survivorship, meaning that if one of them should die, then the other automatically inherits the deceased’s share. Each interest is 50% for joint tenancy.
If someone wishes unequal shares, then “tenants-in-common” should be selected.
The real issue was this: David contributed about $70,000.00 towards the downpayment at the outset. Michelle did not. Both were jointly responsible for the mortgage.
Judge Heeny concluded that on the basis of the legal doctrine of constructive trust, David should be compensated for the deposit “off the top” before getting to the equal division of the equity in the property by way of the Joint Tenancy.
Brian Madigan LL.B., Broker