Joint Tenancy and WALKER

KISSANE &
Tenancy in Common PLUMMER
SOLICITORS

Joint Tenancy

This is a form of co-ownership in which the following principles apply:

a) In theory each Joint Tenant owns the whole of the property jointly with the
other owner or owners. No party has a specific share in the property while
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.

b) The principle of ‘survivorship’ applies. On death of one Joint Tenant the

surviving Joint Tenant or tenants acquire the whole property automatically by
operation of law. It follows that property held in joint tenancy does not form
part of the estate of the tenant who dies. So a Joint Tenant cannot in her or
his will deal with property held in joint tenancy.

c) The principle of joint tenancy applies to real estate as well as to property like
cars, shares, furniture and bank accounts.

d) Joint tenancy is usual in marriage where the spouses want to hold the
property equally, and, also want the principle of survivorship to apply. It is not
so common in other situations.

If you hold real estate as a Joint Tenant you can easily sever the joint tenancy and
convert it to a tenancy in common. This is something which needs to be seriously
considered in many situations especially where a marriage or de facto relationship
has broken down.

Tenancy in Common
This is a form of co- ownership in which the property is held in common with others
but where, in contrast with Joint Tenants, the share of a deceased Tenant in
Common forms part of the deceased’s estate and passes to his or her beneficiaries
under his or her Will or certain prescribed persons or intestacy (that is where there is
no Will)

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).

Assets held as Tenants in Common do form part of your estate and can be left by
Will.
As you can see there are significant differences between these 2 types of ownership.
You need to carefully consider which is appropriate to your particular circumstances.
We can help you chose the best option for your particular situation.

We hope that you have found this material helpful. Please remember that
these comments are for your general information. They are not a definitive
analysis of the subject and professional legal advice should be taken before
any final decision is made.

℡ Phone: (02) 9745 1999 Fax: (02) 9745 3252  Email: Burwood@wkp.com.au

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