When buying property you have the choice of choosing “Joint Tenants” or “Tenants in Common”.
Please ensure your Conveyance contains the correct instruction and confirmed in writing.
What is the difference?
“Joint Tenants” – possess a right of survivorship, that is, the interest of a deceased joint tenant passes to the surviving joint tenant(s).
In most cases married or defacto couples chose this option when Purchasing a Property.
To create a joint tenancy four unities must be present:
- Unity of time. All the joint owners must acquire their interest in the property at the same time.
- Unity of title. All the joint owners must acquire their interest from the same transaction.
- Unity of interest. All the joint owners interests must be identical in nature, extent, and duration.
- Unity of possession. Each joint owner has an equal right to possession of each part and to the whole of the property, but not a right to exclusive possession of any part.
Tenants in Common
“Tenants in Common” – do not possess a right of survivorship and on their death their interest passes according to the terms of their Will.
If a tenant in common dies intestate (without a will) their estate is distributed according to the Wills, Probate and Administration Act 1898.
A tenant in common holds an undivided share in the property and has unity of possession.
This means that each co-tenant has an equal right to possession of the whole of the property, but not a right to exclusive possession of any part.
A tenant in common may deal with their respective share as they wish and this will not affect the tenancy of the other co-tenants.
Some also employ this structure in equal shares or different splits so as to facilitate income/expense splitting on rental properties and capital gains tax.
The importance of a will
With property ownership – it is very important to ensure you have an up todate legal Will drawn up by a Solicitor who specialises in this area.
Property distribution can become very complicated if affairs are not in order if the unexpected occurs – particularly when couples are in a second marriage with children together and older children are involved on one or both sides from the previous marriage/s.