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If you purchase a property with someone else – do you know how it is owned? Let’s have a look at Joint Tenancy vs. Tenants in Common in WA.

When two or more people purchase a property together, it is important to understand how that property is owned and the consequences of that type of ownership when preparing your Will and as part of your estate planning.

Understanding how you own your property will assist you in making informed decisions and plan for the following:

  • Potential tax implications;
  • Determine if the property will need to be sold when one of the owners dies or if it will be transferred to the surviving owner;
  • If you have a dependent or another person who is living with you and reliant on you for a place to live; and
  • Potential family conflict.

Importantly, it is much easier to address the consequences during a person’s lifetime than when one of the owners has died.

Types of Ownership

There are two ways that two or more people can choose to own a property:

  1. Joint tenants:
    • the right of survivorship applies meaning if a joint owner dies then the property automatically transfers to the surviving joint owner.
    • If both joint owners are still alive then individuals with joint tenancy ownership may need to consider other assets when drafting their Will, as their property share will not be governed by the Will.
    • Equal Shares: All joint tenants own equal portions of the property, regardless of their financial contribution or initial investment.
  1. Tenants in common:
    • Involves co-ownership where individuals hold distinct and separate shares in a property.
    • Tenants in common can own different proportions of the property, reflecting their financial contributions or other arrangements.
    • No Right of Survivorship: In the event of a tenant in common’s death, their share does not automatically transfer to other co-owners. Instead, it forms part of their estate and passes according to their Will or intestacy laws.
    • Each owner may sell their share independently or gift their share to a beneficiary in their Will, subject to legal and regulatory constraints.
    • Two different types of ownership options:
      • Tenants in common in equal shares:
      • Tenants in common in unequal shares.

Benefits of each type of ownership

Deciding whether to hold property as joint tenants or tenants in common depends on various factors, including the relationships between co-owners, their financial contributions, and estate planning goals.

  • For spouses or close relatives who want to ensure a seamless transfer of ownership in the event of death, joint tenancy might be preferable due to its right of survivorship. However, tenants in common can offer more flexibility in terms of sharing ownership percentages, accommodating varied financial investments, and allowing each party to maintain control over their share.
  • Tenancy in common offers greater testamentary control. In this ownership arrangement, each tenant in common owns a distinct share of the property. This means that when a tenant in common prepares a Will, they have the power to determine who will inherit their share upon their death. However, it’s important to remember that if there are multiple tenants in common, each tenant can independently decide what happens to their share, potentially leading to complicated ownership arrangements in the future.

Legal advice is essential

Understanding the differences between joint tenancy and tenancy in common is essential for property owners in Australia. Each form of ownership has distinct legal implications that impact matters of succession, sale, and division of property. Before deciding, individuals should seek legal advice to ensure their choice aligns with their intentions and objectives for the property. Whether aiming for simplicity and survivorship or flexibility and individual control, Australian property owners can choose the ownership structure that best suits their needs.

At Lynn and Brown lawyers, we understand that proper legal guidance is crucial when making decisions about property ownership and estate planning to ensure that wishes are accurately reflected, and legal obligations are met.

If you would like to discuss your ownership options, please contact Lynn and Brown Lawyers.

 

About the Author: Hannah is a graduate of both the University of Western Australia and Notre Dame University, having completed a Bachelor of Arts (major in ‘Law and Society’’ and minors in History and Psychology) in 2016 and a Bachelor of Laws in 2018.

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