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Joint ownership of property – consequences of whether you hold your interest in your real estate with other/s as joint tenants or tenants-in-common?

In our experience, many clients can tell us that they hold their property ‘jointly’ with another.

However, unless they were made aware of their choice of holding as ‘joint tenants’ or ‘tenants in common’ in specific shares at the time of acquiring the property, many cannot tell us exactly how it’s held.

Joint tenancy means that each named owner shares equally in 100% ownership of the property. They do not hold a specific % or interest each.

On the death of a named owner, the surviving owner/s continue to own 100% of the property. This is known as the law of survivorship.

Tenants in common means that 2 or more named owners of a property own their specific share as noted on the title (eg ‘as tenants in common in equal shares’, ‘ ¼, ¼ & ½  as tenants in common’, ‘ 99/100 & 1/100 as tenants in common’).

On the death of a named owner the law of survivorship does not apply, the deceased’s specific share forms part of their estate.

What’s best for you?

Everyone’s needs are different.

What is most important is that you are aware of the difference in the treatment of your interest in the property on your death, then discuss what best suits you with your solicitor.

If the named owners of the property want to change the way that it is held from joint tenants to tenants in common they can mutually, or unilaterally, do so (so long as the ownership reverts to equal shares amongst the joint tenants) without having to pay any stamp duty. We can assist with this process.

Managing ownership of joint property

If a named owner of the property wants to sell the property, have you considered what rights they have to force the sale and whether you want an agreement in place for the process rather than relying on the legislative process? We can assist in preparing ‘joint ownership’ agreements, or if the circumstances warrant, ‘partnership agreements’ (see our article If you have a business partner you need a Partnership Agreement, Business and commercial, Our Expertise, Garland Waddington Solicitors) for the named owners of the property to agree, in advance, their options. These agreements should be tailored specifically to each parties’ individual needs and provide certainty, and peace of mind, for joint owners.

If you or someone you know wants more information or needs help or advice, please contact us on (07) 5443 4866 or email advice@gwlaw.com.au.

If you need help, or have a question get in touch with us today.