Last updated 16 August 2016
When two or more persons are buying property together, they must decide whether to hold the property as joint tenants or tenants in common.
Joint tenancy is a method of owning property that allows all tenants to have their names on the title deed as co-owners. The effect of joint tenancy is that upon the death of one of the joint tenants, their share goes automatically to the other joint tenant by a legal process known as survivorship. This rule of survivorship will apply regardless of what the deceased says in their will.
Problems can arise where one or more joint tenants wish to sell their interest but the others do not. In such a case, it may be necessary to make an application to the court under the Property Law Act 1974 (Qld) to have an order for partition made so that a sale can proceed.
For these reasons, joint tenancy is most suitable for a couple that intend to live permanently together and who want the property to go automatically to their partner upon death.
Tenants in common own property in individual shares, with the title being in the names of all of those buying the land. Usually, the tenants in common will be those who have provided the purchase monies. Traditionally, each person has a fractional share in the land in proportion to the amount of money they have provided towards the purchase price. If property is owned by tenants in common, on the death of one of the tenants in common, the deceased person’s fractional share is distributed according to their will. If there is no will, the fractional share is distributed according to the rules that apply upon intestacy (see chapter on Wills and Estates).