What’s the Difference? Joint Tenants vs. Tenants in Common
When you’re buying property on the beautiful Sunshine Coast with another person, be it a spouse, business partner, family member, or friend, you face a fundamental legal question: how will you hold the title?
At Bradley & Bray Lawyers, we specialise in Property Law and Conveyancing, and we know that the choice between joint tenants vs. tenants in common is one of the most important decisions you will make. It’s not just a technicality; it directly impacts your financial future, your rights to the property, and crucially, what happens to your share after you pass away.
So, today, let’s discuss these two fundamental types of property ownership under Queensland law and help you decide which one to choose.
Joint Tenants: The Right of Survivorship
The default position in Queensland property law, particularly for couples, is often Joint Tenancy. This structure is defined by two key elements:
1. Undivided and Equal Ownership
As joint proprietors, you and your co-owner(s) own the whole property together, rather than defined, separate shares.
No Shares: You don’t own “50% of the house”; you each own 100% of the whole house equally.
Unity: Joint Tenancy requires four legal ‘unities’—of possession, interest, title, and time. This essentially means you acquired the property at the same time, under the same title, and hold an equal interest.
2. The Crucial ‘Right of Survivorship’
This is the most significant feature of joint tenancy. The joint tenants’ right of survivorship means that if one owner dies, their interest in the property automatically passes to the surviving owner(s), regardless of what their Will says.
Bypasses the Will: The property interest is transferred immediately by operation of law. It does not form part of the deceased’s estate. This means the transfer is typically simpler and faster than dealing with a probate process.
Estate Planning Impact: If you own property as joint tenants and Wills are involved, the Will’s instructions about that specific property are entirely overridden by the right of survivorship. For instance, you cannot specify in your Will that your half-share should go to your children or a separate trust. This lack of control post-death is why it is unsuitable for complex financial arrangements or blended families who need their share to pass elsewhere. The property must go to the surviving co-owner, period.
The key takeaway: If you want your property to automatically transfer to your co-owner upon your death, the joint tenancy with right of survivorship is usually the preferred structure.
Tenants in Common: Defined Shares and Flexibility
The tenancy in common in QLD structure is chosen when co-owners want more flexibility and control over their individual stake in the property.
1. Defined, Separate Shares
As tenants in common, each owner holds a defined, separate share of the property. The key characteristic here is flexibility:
Unequal Shares: Unlike joint tenancy, the shares do not have to be equal. For instance, two investors might hold the property as tenants in common in a 70% / 30% split, reflecting their contribution to the purchase price or mortgage.
Dealing with Shares: Each owner can deal with their share independently. You can sell your half share of a property in Australia (or whatever your share is), or even mortgage your specific share, without the consent of the other co-owners.
2. No Right of Survivorship
This is the central difference from joint tenancy. When a tenancy in common deceased estate occurs, that person’s defined share does not automatically pass to the surviving co-owner(s).
Estate Inclusion: The deceased owner’s share passes into their estate and is distributed according to the instructions in their Will, or by the rules of intestacy if there is no Will.
Estate Planning Flexibility: This makes tenancy in common in Australia a popular choice for investment partners, blended families (where an owner wants to ensure their share goes to their children from a previous relationship), or owners who wish to keep their estate planning flexible.
The key takeaway: If you need an unequal split, or if you want to ensure your share of the property goes to a specific beneficiary through your Will, then tenancy in common is the better option than joint tenancy.
Comparison at a Glance: Tenants in Common vs. Joint Tenants in QLD
Feature: Share Ownership
Joint Tenants: Equal, undivided share of the whole property.
Tenants in Common: Separate, defined shares (e.g., 50/50, 70/30).
Feature: Right of Survivorship
Joint Tenants: YES—Share automatically goes to the surviving owner(s) on death.
Tenants in Common: NO—Share goes to the deceased’s estate, to be distributed by Will.
Feature: Estate Planning
Joint Tenants: Share is outside the Will. Less flexible.
Tenants in Common: Share is part of the Will. Highly flexible.
Feature: Selling a Share
Joint Tenants: Must sell the entire property together.
Tenants in Common: An owner can sell or mortgage their specific share independently.
Feature: Commonly Used By
Joint Tenants: Married or de facto couples (joint ownership of property).
Tenants in Common: Business partners, investors, blended families.
Critical Questions About Joint Tenants vs Tenants in Common
Choosing the type of property ownership also raises practical issues we often deal with right here on the Sunshine Coast:
What if, in a joint ownership of property, one person wants to sell?
This is a common dispute, especially after a relationship breakdown. If one co-owner of property wants to sell and the other doesn’t, or if you can’t agree on terms, either party can apply to the Supreme Court of Queensland for an order under the Property Law Act 2023 (Qld) to appoint a trustee to sell the property. This is generally seen as a last resort, as litigation is costly.
Can I change from joint tenants to tenants in common?
Yes, you can sever joint tenancy in QLD. This process, known as severance, converts the ownership from joint tenancy to tenancy in common in equal shares. Crucially, a joint tenant can typically sever joint tenancy in QLD unilaterally (without the consent of the other owner) by lodging the appropriate transfer form with Titles Queensland.
This process immediately extinguishes the right of survivorship in joint tenancy.
This is often done during a relationship separation to protect a party’s interest and ensure it can be passed to their intended beneficiaries via a Will.
Tenants in common and mortgages—Can we have separate loans?
When acquiring a mortgage for tenancy in common, lenders usually prefer all co-owners to be jointly and severally liable for the one loan, meaning everyone is responsible for the full debt. However, tenants in common home loans can be structured so that each owner has a separate loan secured against their distinct share of the property, particularly for investment purposes. This requires expert advice and is less common, but it allows you to truly see that tenants in common can have separate mortgages.
Let Our Property Lawyers Help You Decide
The decision between joint tenancy vs tenants in common should be made with clear eyes, aligning the legal structure with your financial and estate planning goals. Don’t leave your most valuable asset to chance.
If you are purchasing a property or need to explore a change from joint tenancy to tenancy in common in Queensland, our team of property lawyers at Bradley & Bray is here to provide the personalised legal services you need to secure your future on the Sunshine Coast.
Disclaimer: This article is general in nature and does not constitute legal advice. If you require legal advice in relation to your personal circumstances, you must formally engage our firm, or another firm to provide legal advice in relation to your matter. Bradley & Bray lawyers take no responsibility for any use of the information provided in this article.
