Joint Tenancy vs Tenants in Common: Do you know the difference and why does it matter?
Philippa Webb
E:
philippa@kjblaw.com.au
If you are not purchasing a property by yourself, you will be given the option to purchase the property as joint tenants or tenants in common. This also applies where two or more people take an estate or interest in land, by way of lease, mortgage, transfer, application or charge. This article will focus on what it means if you purchase a property as joint tenants or tenants in common.
If you purchase a property as joint tenants and one joint tenant passes away the interest of the deceased joint tenant automatically passes to the surviving joint tenant. If the property is purchased as tenants in common and one tenant dies then the deceased’s share passes according to the terms of the deceased’s Will (if they have a Will) and not automatically to the other tenant. Tenants in common can hold their interests in equal shares or unequal shares, for example 60/40 or 90/10.
Have you thought about what would happen if you separated from your de facto partner or spouse and you owned properties as joint tenants? If you are separated from the other joint tenant, would you still want your share to go to the surviving joint tenant in the unfortunate event you were to pass away? A situation may occur where you have separated, however you have not commenced proceedings seeking a property settlement under the Family Law Act 1975 (Cth) or you have not formalised your property settlement – let’s call it a “period of limbo.”
In this period of limbo if you own your property as joint tenants and you were to pass away, your share of the property would automatically pass to the surviving joint tenant. As you have separated you may no longer want your share of the property to go to the surviving joint tenant. It may be that you want to sever the joint tenancy, so that you can have a say about who your share of the property passes to. For example, you may want your share of the property to pass to your children, as opposed to your share automatically passing to your estranged spouse or former partner (the other joint tenant).
We can assist you to sever the joint tenancy. Once the transfer to sever the joint tenancy is registered by Land Titles then the interest will be held as tenants in common. There are different processes in each state to sever the joint tenancy. We can assist you to sever the joint tenancy of a property in the ACT and NSW. Please feel free to telephone our office to arrange an appointment to discuss the process of severing the joint tenancy. We also have experienced solicitors who can assist you with your estate planning, Wills and family law matters.
Philippa Webb
E:
philippa@kjblaw.com.au
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