Would you like a say about who gets your share of your house when you die? Or whether someone else can sell their share of your house without your say so?
When it comes to major purchases such as real estate, or other property such as cars and boats, you would hope that by handing over your hard-earned money, you get a say in important issues, or at least know where you stand.
When two or more people decide to buy property together, they may own it as joint tenants or tenants in common. These options may sound similar, but can have some drastic differences in the rights and responsibilities of different co-owners.
These differences are often highlighted when one of the co-owners passes away, and the executors or beneficiaries of the will of the deceased are trying to administer the estate.
While the share of property owned by a tenant in common can be gifted under the will of the owner, this is not the case for a joint tenant. When a joint tenant passes away, the surviving joint owners automatically become the remaining joint owners of the property through survivorship. A joint owner is not able to dictate where their share in property passes when they die in their will.
Another difference is the rights is that an owner as a tenant in common is able to sell their share in the property to a new owner. A joint tenant is not able to sell their interest without the compliance of other joint tenant.
How is my Property Owned?
The NSW Torrens Title system notes on title whether the interests of co-owners of real estate are as tenants in common or joint tenants.
While the Torrens Title system makes it easier to determine how real estate is owned, this is not always the case for other property.
Default Position: Common Law vs Equitable Principals
The default position under the Common Law has been that where property was acquired by two or more persons, it was presumed to be acquired as joint tenants, unless any of the following 4 joint unities were absent: –
· Possession – owners possessing the property as a whole and not just a specific part
· Interest – owners holding equal shares
· Title – owners taking their interest under the same document or act
· Time – owners taking their interest at the same time unless via a will or trust.
To complicate matters, equitable principals form a presumption that people would prefer to keep their own share of property and pass it on to their heirs, and so even if the legal interest in property was found to be jointly held between multiple owners, equity can find a beneficial ownership to be as tenants in common in circumstances such as where the multiple purchasers provide the purchase money in unequal amounts.
Bring on the Conveyancing Act 1919
A clearer position is found in the Conveyancing Act 1919, which sets out a different default position for co-owners who acquire property via a written instrument such as a contract.
The Act dictates that, with some exceptions, where two or more persons acquire property via a written agreement, they do so as tenants in common, and not joint tenants unless specifically stated. This position under the Act applies to both real estate and personal property.
Some of the exceptions to this statutory rule include property acquired by trustees, executors, administrators or mortgagees.
If you are unsure how your property is currently held, it is important to review to determine whether the current ownership matches your wishes. If not, it is possible for the co-owners to arrange to change ownership between tenants in common and joint tenants as desired.
To obtain advice before acquiring property, or to review or repair your current position, contact Baker Love Lawyers.
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