The difference between joint tenants and tenants in common is what happens when one owner dies. A joint tenant’s share passes automatically to the surviving owners. A tenant in common’s share forms part of their estate and passes under their Will. You choose which ownership type you want when you sign the contract, so it’s worth understanding before you get there.
Joint tenants
If you own as joint tenants, then on the death of one owner that owner’s share passes automatically to the surviving joint tenant or tenants. It happens by operation of law and the Will has no say in it.
Married and de facto couples often choose joint tenants because it keeps ownership succession simple. The surviving owner lodges an Application by Survivor with Landgate to amend the certificate of title. No grant of probate is needed for that step.
Tenants in common
If you own as tenants in common, then on the death of one owner that owner’s share forms part of their estate. It’s dealt with in accordance with their Will. If there is no Will, the intestacy rules decide.
Landgate will permit a transfer in accordance with the terms of a Will once the applicant has obtained a Grant of Probate. They also complete an Application by Personal Representative, also known as a Transmission Application.
Because your share passes under your Will, it’s worth making sure you have one. Without a Will the intestacy rules decide who gets your share. They may not match what you and your co-owner intended. See making a Will.
Equal or unequal shares
Joint tenants always own equal shares with their co-owners. If you want unequal shares you have to choose tenants in common. The shares are then recorded on the title as fractions.
This is the point that catches people out. If one of you is contributing most of the deposit and you buy as joint tenants, that contribution isn’t recorded anywhere on the title. Say so before the contract is signed rather than after.
How do I know which one I have?
Look at the certificate of title. Joint tenants are listed together as joint tenants. Tenants in common are listed with their share against each name, such as one half each or two thirds and one third.
The choice is recorded in the contract when you buy, so it’s decided at the offer and acceptance stage rather than at settlement.
Can you change it later?
Yes. Co-owners can move from one to the other after settlement. There are transfer duty and lending consequences to check first, so get advice.
Frequently asked questions
Which is better for a couple?
Neither. Joint tenants suits couples who intend everything to pass to the survivor. Tenants in common suits unequal contributions, blended families and anyone who wants their share to go to somebody other than their co-owner.
Do we need a Grant of Probate if we are joint tenants?
Not to transfer the property. The surviving owner lodges an Application by Survivor. The rest of the estate may still need a grant.
Can friends or family buy as tenants in common?
Yes. It’s usually the right choice for them. It lets each person hold a share that matches what they put in and leave it to whoever they choose.
Talk to us before you sign
We act for buyers and sellers on residential and commercial property settlements across Perth and Western Australia. We can talk the choice through with you before the contract is signed.
Call the settlements team on (08) 9220 4430 or download an itemised quote for your own purchase.
This article is general information and not legal advice. Every property transaction turns on its own facts.
