I am often asked what the difference between ‘joint tenants’ and ‘tenants in common’ is. This is an important distinction, as the tenancy in which you purchase a property will have future implications, particularly in the event of one tenant’s passing.
In most cases, married couples, family members and couples who have been in a relationship for many years will purchase as joint tenants. However, tenants in common is often utilised where, for example; a couple is in a new relationship or bringing together blended families; tenants are not related or in a relationship; or where there are numerous owners.
WHAT IS THE DIFFERENCE BETWEEN ‘JOINT TENANTS’ AND ‘TENANTS IN COMMON’?
“Joint tenants” means that the registered proprietors, of which there can be more than two, own the property jointly in equal shares. If either of the registered proprietors dies, then the property is automatically transferred to the surviving registered proprietor(s).
“Tenants in common” means that each registered proprietor owns a share in the property. These shares do not have to be equal and can be 50/50, 75/35 or any other combination, provided that the shares add up to 100%.
On the death of a registered proprietor, the property does not automatically transfer to the surviving registered proprietors, but the deceased’s will determines to whom the deceased’s share in the property is to be transferred. Often the nomination of tenants in common is not for personal reasons, but for taxation purposes.
EXAMPLES OF PROPERTY OWNERSHIP SCENARIOS
Tom and Mary are married and own property as joint tenants. Mary passes away. Tom is able to transfer the property into his sole name by lodging a copy of Mary’s Death Certificate, together with a Notice of Death form, at Land Registry Services.
John and Margaret are in a new relationship and purchase a home together. As their relationship is reasonably new, they purchase as tenants in common in equal shares (50/50). Some years later John passes away. The property is not automatically transferred to Margaret; instead it is transferred in accordance with the terms of John’s will.
Bob and Sue are in a blended family and have been married for ten years. Both have children from previous relationships. By purchasing the property as tenants in common, should either Bob or Sue die, then his or her interest in the property can be dealt with as per their individual will.
WHICH OPTION IS THE RIGHT ONE FOR YOU?
It is important you consider which tenancy is right for you and what you want to achieve with your share of the property, should you pass away. You should speak to your legal representative and your accountant to get the correct advice.
ABOUT THE AUTHOR
Yolanda Regueira is the Conveyancing Manager at Clinch Long Woodbridge (CLW) Lawyers in Sydney, NSW. She specialises in assisting clients with smooth settlement transactions and offers expert advice on all matters of property conveyancing. Yolanda is a Justice of the Peace and has accreditation in the preparation and execution of Powers of Attorney.
CLW is a client-focused firm providing a range of legal expertise across specialised areas including property, business, wills and estates, automotive and employment. The team prides itself on exceptional client services and tailored, integrated approach to ensure the best outcome for every client, every time. For further information : www.clw.com.au