When a “Gift” Isn’t a Gift: Lessons from Jackson v Rosenberg
Adding a family member to the title of a home might seem like a simple paperwork request, one that many real estate lawyers encounter on a weekly basis. But as the Ontario Court of Appeal’s decision in Jackson v Rosenberg, 2024 ONCA 875, makes clear, these transactions are anything but simple when intent isn’t properly understood or documented.
Planning for the Future: When Title Doesn’t Reflect Intent
The case involved Mr. Jackson, who, after the death of his long-time partner, became the sole beneficiary of their estate. The couple had executed mirror wills naming each other as primary beneficiaries and Ms. Rosenberg, Mr. Jackson’s late partner’s niece, as the alternate. Mr. Jackson had no relatives of his own. Over the years, both Mr. Jackson and his partner developed a close relationship with Ms. Rosenberg.
In 2012, after selling the condominium he had shared with his partner, Mr. Jackson purchased a new home in Port Hope in his own name. Based on legal advice and wanting to avoid probate fees and make the transfer of assets easier for Ms. Rosenberg upon his death, he added her to title as a joint tenant without fully understanding the implications of doing so. He believed this only allowed the home to pass to her automatically upon his death, without going through his estate – not realizing that, in doing so, he was also giving her an immediate legal interest in the property, including the right to sell or encumber it while he was still living there.
The arrangement continued without issue until 2020, when Ms. Rosenberg’s husband informed Mr. Jackson that they planned to renovate and sell the home, suggesting that Jackson would move with them into a new residence. Shocked by the assumption that he no longer had complete control over the property, and concerned about potentially losing his home, Mr. Jackson severed the joint tenancy to remove Ms. Rosenberg’s right of survivorship. He then brought a court application seeking a declaration that Ms. Rosenberg’s interest was held in trust for him.
Keep in mind, the transfer was gratuitous; there was no consideration. Ms. Rosenberg made no financial contributions, never lived in the home, and had no responsibilities related to its upkeep. Mr. Jackson’s intention, as he would later testify, was not to make her a co-owner during his lifetime but to ensure she would inherit the property when he passed.
The Court’s Determination on Ownership
At the heart of the legal dispute was a fundamental question: did Mr. Jackson intend to gift Ms. Rosenberg a true ownership interest in the property during his lifetime, or was her name on title merely a tool to facilitate inheritance after his death?
The court found in Mr. Jackson’s favour. Because the transfer was gratuitous, it triggered the presumption of resulting trust, a legal principle that assumes the transferee (Ms. Rosenberg) holds the property in trust for the transferor (Mr. Jackson) unless clear evidence shows a gift was intended.
Ms. Rosenberg argued that the transfer was an outright gift and that she was a true joint owner of the property. She also claimed that the survivorship right had vested and could not be revoked. The court disagreed. It accepted Mr. Jackson’s testimony that he had not intended to make her a co-owner during his lifetime and that he had added her to title solely to avoid probate and ensure a smooth transfer upon his death.
The Court of Appeal confirmed that the right of survivorship is not a standalone gift; it is a feature of joint tenancy, and once that tenancy is severed, the right disappears. Because Mr. Jackson had severed the joint tenancy in 2020, Ms. Rosenberg’s survivorship interest was extinguished. Although she remained on title, the court found she held her interest under a resulting trust for Mr. Jackson, who retained full beneficial ownership.
Why This Matters for Clients
The Jackson v Rosenberg decision is a reminder that property transfers between family members, especially when done to “keep things simple,” can have serious unintended consequences if not properly thought through.
Many people believe that adding a family member to the title of a home is a straightforward way to avoid probate or ensure a smooth inheritance. However, without the right legal advice and documentation, this kind of transfer can create confusion about who actually owns the property. In Mr. Jackson’s case, what he saw as a simple estate planning step turned into a lengthy legal battle over ownership.
The court ultimately found that even though Ms. Rosenberg was on title, she didn’t truly own the home. She was found to be holding her interest under a resulting trust for Mr. Jackson because he hadn’t intended to give her full ownership during his lifetime. Still, her name on title created complications that took years and another court order to resolve.
The key lesson for clients is this: even small decisions about property can have long-term consequences. Transferring ownership, even partially, should never be done casually. If you’re thinking about adding someone to title, it’s important to speak with a lawyer who can walk you through your options, help clarify your intentions, and make sure those intentions are properly reflected in the legal documents.
If you’re seeking an experienced real estate or estate lawyer to assist with a property transfer, joint ownership arrangement, or estate planning strategy, our team is here to help. We’ll work with you to ensure your intentions are clearly documented and legally sound, helping you avoid disputes before they arise.
