The consequences of not understanding the difference between joint tenancy and tenancy in common can be costly and unforeseen.  The manner in which you own property with others will determine whether the property is passed down to your beneficiaries under the terms of your Will or whether it becomes the property of the other owners upon your death.

Unfortunately, having a well drafted Will is no guarantee that your wishes will be carried out if the Will drafter has not taken account of the manner in which you own property with others and advised you accordingly.

When buying property with others it is very important to get the manner of co-ownership correct.

Joint Tenants

This is a form of co-ownership in which no party has a specific share in the property while the joint tenancy continues.  This means that the joint tenants must have equal interests in the property, and are entitled equally to its rents and profits. There can be two or more joint tenants.

Most importantly, on the death of one joint tenant the surviving joint tenant(s) receive the interest of the deceased tenant by operation of law, irrespective of any Will made by the joint tenant who died, and irrespective of the intestacy rules if the deceased had no Will.  Joint tenancy is usual in marriage or close domestic relationships where the spouses want to hold the property equally, and also want the principle of survivorship to apply.

Joint tenancy can be used as an effective mechanism in estate planning strategies.

Tenants in Common

This is a form of co-ownership in which property is held in common with others but where, in contrast with joint tenants, the share of a deceased tenant in common passes to his or her beneficiaries under his or her Will or intestacy and does not automatically pass to the surviving tenant or tenants in common.

Tenants in common have fixed, undivided shares in the property.  Tenants in common can have unequal shares (for example, two-thirds to one and one-third to the other).

Whilst stamp duty is generally payable upon the transfer of property, exemptions may apply for transfers of interests in the matrimonial home between spouses.

If you make the correct choice at the time of buying, this will save unnecessary stress to your loved ones left behind.  Making the wrong choice could mean that your interest in the property will not form part of your estate and that it will automatically pass to the other co-owner.

For further information please contact Anna on 8362 6400 or email Anna PanteliosJoin our mailing list to receive updates and advice on current issues.

 

  • Anna Pantelios

    About the author: Anna Pantelios

    Anna has over 20 years of conveyancing experience and has been a registered conveyancer since 2002. Anna is extremely knowledgeable and experienced in all areas of conveyancing. She also has the immediate support of specialist property lawyers.

    Anna can assist you with any aspect of residential and commercial property dealings including preparation of Contracts for Sale & Purchase of Land and Form 1′s, sub-divisions, property transfers and conveyancing, preparation and registration of instruments under the Real Property Act including mortgages, encumbrances, easements and caveats.

    Call on 8362 6400 or email Anna.

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