We have had a number of matters in recent months whereby clients who own properties with another person (for example, married partners) are unsure or unaware of whether they are holding the property as ‘joint tenants’ or ‘tenants in common’. Further, it appears that many are in fact holding property as ‘joint tenants’, despite not understanding the effect of this holding.

This is worrying for a number of reasons, one of the main being that the way the property holding is structured can significantly affect the distribution of a person’s estate upon passing.

Our experienced and professional conveyancing team at Affinity Lawyers thought it was timely to provide an update in relation to what the two different types of property holdings actually mean and how they can affect your estate in the future.

TENANTS IN COMMON

When property is held as ‘tenants in common’, this means that despite two or more people owning a ‘share’of the property, if one of the owners were to pass away, then their share of the property would be distributed in accordance with their instructions as set out in their will (subject to any family provision claim) or otherwise under the rules of intestacy. This differs from the effect of holding property as a ‘joint tenancy’, where upon one of the joint tenants passing away, their share will automatically go to the remaining joint owners of the property, without any regard to the persons will.

It is therefore imperative if you hold any property as a tenant in common that you have a valid and enforceable will, which specifies the person or the organisation which is to receive the benefit of your share of the property.

If you do not have a valid will, then your estate will be administered and distributed in accordance with the Succession Act 1981 (Qld), which could result in unwanted distributions and/or diminution of the estate in favour of the Government.

You can hold property as a tenant in common in equal shares (e.g 50/50), or you can divide up the holdings in any way you like by way of fractions (e.g. 2/5 and 3/5).

JOINT TENANTS

The other way of holding real property is in a joint tenancy, which allows parties to hold property in equal shares no matter how many joint tenants there are.

Upon the death of a joint tenant the share passes to the other joint tenant/s (in equal shares if more than one) automatically without reference to any intention of the deceased person, as may be set out in a will.

The most common use of holding as joint tenants is a husband and wife situation where upon the death of the husband or wife their interest automatically passes to the surviving party.

For example, husband and wife hold property as joint tenants. If the husband dies the wife is automatically the owner of the property.

ISSUES TO CONSIDER

Without giving specific advice or considering personal circumstances, there are some general problems which could arise from either type of holding, so it is vitally important that you understand the implications of each, and how they apply to your circumstances and wishes.  In this respect, we would strongly encourage you to schedule an estate planning consultation with one of our experienced solicitors in our Gold Coast office, to ensure that you are thoroughly apprised of your options.

Consideration must be had for issues which could arise from holding property as tenants in common, which could include the following:

• Inability to sell a share of the property to a third party – it may be difficult to find someone wanting to purchase your share of the property to be held with your current co-owner/s.  This can include situations where you have a falling out with your co-owner and no longer want to live in the property.
• Co-owner’s creditors may be able to force the sale of the property to satisfy their debts – although they cannot touch your share of the property, the property may need to be sold to satisfy your co-owners debts;
• You may need to sell quickly and your co-owner may not want to sell which leaves you in a precarious position and may result in going to court to force the sale of the property.

There are of course benefits to holding property this way, and these include:

• the ability to deal with your share of the property as you wish;
• being able to pass the share along to whomever you wish in accordance with your will when you pass;
• the ability to pool funds with other parties to purchase property of a higher value or in a better location which may not have been a possibility on your own.

The last benefit above has become increasingly common in recent times as it becomes harder for young people to enter into the property market and has allowed many to get their feet in the door.  However there are obvious risks associated with these types of transactions, which increase as the number of people involved grow.

There are many other situations which could arise during the course of holding a property as tenants in common, and it is important that you consider these prior to purchasing a property this way.

Likewise, holding property as joint tenants also has its own considerations, the main one being that upon your passing, your share in the property will automatically be transferred to the other joint tenant/s and your estate may be left with nothing substantial to distribute if the property was your main asset.

Joint owners are also faced with an increased level of responsibility toward the property including proportionate mortgage, tax, rates/water, and other maintenance/repair expenses associated with the property.

This way of holding property is mainly of benefit if you:

• wish to have simplicity in estate proceedings – if your real property is your main asset and you wish it to go to the other joint tenant upon your passing, then the property will automatically pass to the joint owner and will avoid the extra expense of probate court proceedings.

It can also assist with some tax benefits in certain circumstances, and includes a right to a proportional share of rent or profits.

If you hold an interest in any real property, we would recommend that you make an appointment with one of our experienced solicitors at Affinity Lawyers to discuss your property holdings, how they are presently structured and to provide you with advice on alternative options if needed.

If you are holding property as tenants in common, Affinity Lawyers on the Gold Coast can assist you in drafting an up-to-date will to ensure that the property will be dealt with as you wish if you pass away.

Please do not hesitate to contact our friendly Gold Coast Lawyers on 07 5563 8970 to arrange an initial consultation to discuss your requirements.