Sydun & Co Solicitors

Choosing the Right Property Ownership: Joint Tenancy vs Tenancy In Common

Choosing-the-right-property-ownership

When it comes to owning property, there are two common ways of holding title: as joint tenants or tenants in common. 

Both ownership options have their own advantages and drawbacks, and the choice you make will depend on your personal circumstances and preferences. Business solicitors are specifically qualified to provide you with the correct insights for property ownership.  

In this blog post, we’ll explain the fundamental differences between joint tenant ownership and tenants in common and help you determine which one is right for you. Collaborating with the best property lawyer Sydney makes navigating the complex waters of property ownership smooth. 

What is Joint Tenancy?

Joint tenancy represents a form of property ownership in which a minimum of two or more individuals own the property together. Each joint tenant has an equal share of the property and has the right of survivorship. 

Thus, if one joint tenant dies, their property share, as a matter of course, passes to the surviving joint tenant(s). This transfer occurs outside of probate, which means it is not subject to the deceased joint tenant’s will or estate.

To understand the legal intricacies of joint tenancy, connect with an experienced property or corporate lawyer Australia (for business-related property ownership)

What is Tenancy in Common?

Tenancy in common is another form of property ownership in which two or more individuals own the property together. 

However, unlike joint tenancy, each tenant in common can own a different percentage of the property. 

Additionally, there is no right of survivorship. This means that if one tenant in common dies, their share of the property will pass to their heirs through their estate rather than automatically passing to the surviving co-owners.

Major Differences Between Joint Tenancy Ownership and Tenancy in Common

  • Ownership Percentage: In joint tenancy, each owner has an equal share of the property. In tenancy in common, each owner can own a different percentage of the property.
  • Right of Survivorship: In joint tenancy, if one owner dies, their property share passes to the surviving owner(s). In tenancy in common, if one owner dies, their purchased property share passes to their heirs through their estate.
  • Transfer of Ownership: Joint tenancy automatically transfers ownership to the surviving owner(s) upon the death of one owner, whereas tenancy in common requires the deceased owner’s share to be transferred through their estate.

 The best family lawyer from reputed law firms can guide you in understanding and selecting the right type of property ownership for you.    

Which Option Is Right for You?

When determining between joint tenancy and tenancy in common, you should consider several factors.

Advantages of Joint Tenancy

  • One of the biggest advantages of joint tenancy is that it provides an automatic transfer of ownership to the surviving owner(s) without the need for probate. 
  • This can be beneficial for those who want to bypass the time and expense of going through probate. 
  • Joint tenancy can also be beneficial for couples who want to ensure that their spouse inherits the property without any complications or delays.

Disadvantages of Joint Tenancy

  • One of the biggest disadvantages of joint tenancy is that it offers little flexibility. Each joint tenant has an equal share of the property, which means that they cannot sell or transfer their purchased share without the consent of the other joint tenants. 
  • Additionally, joint tenancy can be problematic if one of the joint tenants becomes incapacitated or enters into bankruptcy.

Discuss your property ownership options with an experienced property lawyer Sydney before finalising your decision.

Advantages of Tenancy in Common

  • One of the biggest advantages of tenancy in common is that it offers more flexibility in terms of ownership percentage. Each tenant in common can own a different percentage of the property, which can be beneficial if one owner has contributed more money towards the purchase of the property. 
  • Additionally, tenancy in common can be beneficial if you want to ensure that your share of the property passes to your heirs rather than automatically passing to the surviving co-owners.

Disadvantages of Tenancy in Common

  • One of the biggest disadvantages of tenancy in common is that it can be more complicated to transfer ownership of the property. 
  • Unlike joint tenancy, which offers automatic transfer of ownership to the surviving owner(s), tenancy in common requires the deceased owner’s share to be transferred through their estate. 
  • This can be time-intensive and costly, especially if the deceased owner does not have a will.

It is recommended that you collaborate with the best family lawyer and update your will whenever necessary. 

Which one to choose?

When making a decision between joint tenancy and tenancy in common, you should consider several factors. 

  • If you are purchasing property with someone you trust completely, such as a spouse, joint tenancy may be the best option as it offers automatic transfer of ownership to the surviving owner(s) without the need for probate. 
  • However, if you are purchasing property with someone you do not know as well, such as a business partner or friend, tenancy in common may be a superior option, as it allows for more flexibility in terms of ownership percentage and the transfer of ownership upon death. For best insights consult experienced business solicitors
  • Additionally, if you have a large estate or are concerned about estate taxes, tenancy in common may be a feasible option, as it allows for more control over the distribution of your share of the property upon death.
  • However, if you are concerned about incapacity or bankruptcy, joint tenancy may be a better option, as it provides an automatic transfer of ownership to the surviving owner(s) without the need for court intervention.
  • It is also vital to know that the choice between joint tenancy and tenancy in common may vary depending on your state’s laws. Some states may have different rules or regulations regarding joint tenancy and tenancy in common, so it is critical to consult with a local property or corporate lawyer Australia before making a final decision. 

FAQs on Property Ownership

Can a joint tenancy be changed to tenancy in common?

Yes, it is possible to convert a joint tenancy to a tenancy in common through a legal process called severance. This can be done by either selling or transferring a portion of the property to another party or by one of the joint tenants filing a declaration of severance with the local land registry office.

Can a tenancy in common be changed to a joint tenancy?

Yes, it is possible to convert a tenancy in common to a joint tenancy through a process called “unilateral severance.” This can be done by one of the tenants in common transferring their share of the property to themselves and the other co-owners as joint tenants.

Can joint tenancy or tenancy in common be revoked?

Yes, joint tenancy or tenancy in common can be revoked, but it requires the consent of all co-owners. Additionally, severing a joint tenancy or changing a tenancy in common to joint tenancy may have tax implications, so it is important to consult with the best family lawyer

before making any changes.

Which form of ownership is best for estate planning?

The choice between joint tenancy and tenancy in common will depend on your individual circumstances and preferences. If you have a large estate or are concerned about estate taxes, tenancy in common may be a more viable option, as it allows for more control over the distribution of your share of the property upon death. 

On the other hand, if you are concerned about incapacity or bankruptcy, joint tenancy may be a better option, as it provides an automatic transfer of ownership to the surviving owner(s) without the need for court intervention. It is important to connect with a professional before making any decisions regarding estate planning.

How is the ownership percentage determined in a tenancy in common?

The ownership percentage in the tenancy in common is typically determined by the amount each owner contributes towards the property’s purchase price or by an agreement between the owners.

Can one joint tenant sell the property without the other joint tenant’s consent?

No, both joint tenants must consent to the sale of the property, as each joint tenant has an equal share and right to the property.

What happens if one joint tenant wants to sell their share of the property?

If one joint tenant wants to sell their share of the property, they must obtain the consent of the other joint tenant(s) or seek a court order to force a sale.

Can a tenant in common force the sale of the property against the wishes of the other tenant(s) in common?

Yes, a tenant in common can force the sale of the property against the wishes of the other tenant(s) in common by filing a partition action in court.

Who is responsible for paying property taxes and expenses in joint tenancy and tenancy in common?

In joint tenancy, all owners are jointly responsible for paying property taxes and expenses. In common, each owner is responsible for paying their share of the property taxes and expenses based on their ownership percentage.

Can joint tenancy or tenancy in common be established between family members or business partners?

Yes, joint tenancy and tenancy in common can be established between family members or business partners. However, it is crucial to consult with a professional experienced in family or commercial law Australia before making any decisions, as there may be legal and tax implications.

Final Takeaway

Both joint tenancy ownership and tenancy in common have their own advantages and disadvantages. Ultimately, the ideal choice for you will depend on your unique situation, and it is important to consult with professionals before making a final decision.

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