Sydney-based lawyer. Formerly Legal Intern at Lawpath.
If you’re thinking about moving into the property market, it’s important to understand how you’re going to own your property. If you’re buying a property with another person, you can own it as joint tenants or tenants in common. Whether an individual is a joint tenant or tenant in common will often depend on the relationship between the parties. It will also largely depend on how you want to own your property. In this article, we’ll explain what the difference is between joint tenants and tenants in common.
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Joint Tenancy
Simply put, joint tenancy is where the parties to an agreement for the purchase of property individually hold an undivided equal share of the property. Where both parties purchase the property together, there is no specified percentage as to who owns what. A joint tenant does not have the right to transfer or sell their interest in the property. In order to remove their interest, they must apply to have the joint tenancy severed which will transfer that interest to the other joint tenant.
Furthermore, it should be noted that there can be more than two joint tenants to the agreement although it is most common to see joint tenancy in the form of a marriage partnership.
Tenants in common
On the other hand, purchasing as tenants in common provides each individual to the transaction with a certain percentage of ownership. This can be equal, but can also be in other percentages. Because of this ownership style, each party that owns a share of the property has the right to sell or transfer their interest in the property to a third party. This normally occurs when the purchasers are not associated with each other.
A common example would be where two or more friends decide to go into an agreement to purchase a property. In this case, each person will be able to own a different percentage based on how much they pay.
Joint tenants and tenants in common
Essentially, the difference lies in ‘survivorship’. Depending on the approach taken, different parties will get the interest of a party that dies. Under a joint tenancy, because the ownership structure cannot be split and there are restrictions to transfer the interest, the death of one party will leave their interest with the other existing parties. This is different to a tenancy in common, as parties own individual portions of the property. These portions will become part of their inheritance upon death and will therefore pass on under their estate.
Depending on the type of tenancy, different documentation is required for the transfer of an interest to a third party. These can be found through the NSW Government Land and Property Information website. They then must be lodged through the Torrens Title Registrar.
Conclusion
If you are planning on purchasing a property with another person, it is crucial to understand how your ownership will work. A significant part of this is knowing where you want your interest to go if you die. If you’re not sure which option is right for you, it is worth consulting with a property lawyerfor advice.
