It is quite common for people, whether in a relationship or not, to buy property together therefore it is important to consider how the property ownership should be arranged when buying a property. Your decision should be made clear to your property lawyer or conveyancer during the conveyancing process in order for him or her to have the ownership correctly noted on title at the relevant State or Territory’s land titles office.
In property law there are two types of ownership:
- joint tenancy, and
- tenants in common.
These two legal concepts have different legal and financial implications on the rights of owners.
When people own property as joint tenants then:
- all joint tenants have equal ownership (50/50 in the property, and
- a right of survivorship exists.
The right of survivorship means that if one of the joint tenants passes away, the property will automatically pass to the surviving joint tenant regardless of any contrary directions in a Will of the deceased.
Usually joint tenants are husband and wife or couples in long-term relationships. However joint tenancy can also be used for other property ownership arrangements where the parties are content with the right of survivorship.
Unless you specify otherwise when you are purchasing a property, the law assumes that you are buying as joint tenants.
A joint tenancy will come to an end in the following circumstances:
- when a joint tenant passes away
- when the property is sold to a third party
- when joint tenant A transfers their interest to joint tenant B, or
- when one of the joint tenants unilaterally severs the joint tenancy to protect the interest of one of the joint tenants such as would be required in a relationship breakdown.
Tenants in Common
People who own a property as tenants in common own it in defined shares which they can dispose of as they wish.
The shares of tenants in common can be equal or unequal. For example, one tenant in common can own 99% of the shares while the other owns 1%.
A tenant in common can sell his or her share in the property or give them away in a Will. This means that there is no right of survivorship.
Tenants in common are usually people entering into second marriages or people who contribute different amounts towards the purchase of a property. Property investors also usually require their share in the property be noted on title.
Remember to ask your property lawyer or conveyancer before you complete your conveyancing transaction what the best form of ownership will be for you.
Your property lawyer will also be able to give you some advice on the different effects of joint tenancy or tenancy in common in your estate planning.
There may also be significant tax differences between ownership as joint tenants and tenants in common. Therefore you should also consult your accountant or financial advisor about the tax and other financial implications of each type of ownership.