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What is tenancy?

Where two or more persons take an estate or interest in land by means of an application, transfer, mortgage, charge or lease that dealing must state whether the persons are to hold as joint tenants or tenants in common. If they hold as tenants in common the share of each person must also be stated.

Joint tenancy

Joint tenants possess a right of survivorship, that is, the interest of a deceased joint tenant passes to the surviving joint tenant(s). This means that a joint tenant does not have an interest in the land that can be passed to another through a will unless they become a sole owner because the other joint tenants have predeceased him or her. The noting of the survivor(s) on Torrens title land is achieved by registration of a Notice of Death form 01ND (PDF 130.0 KB).

To create a joint tenancy four unities must be present:

  • Unity of time. All the joint owners must acquire their interest in the property at the same time.
  • Unity of title. All the joint owners must acquire their interest from the same transaction.
  • Unity of interest. All the joint owners interests must be identical in nature, extent, and duration.
  • Unity of possession. Each joint owner has an equal right to possession of each part and to the whole of the property, but not a right to exclusive possession of any part.

If a registered proprietor is to transfer a share to another person, in order to hold as a joint tenant with that oncoming person, that registered proprietor must be stated as both the transferor and as a transferee on the Transfer form 01T (PDF 268.0 KB) to be registered.

The transfer of joint tenant's interest will sever the joint tenancy and the oncoming party will hold as tenant in common with the remaining tenant(s). The tenancy between the other tenants, not involved in the transfer, remains unaltered.

Corporations (a body corporate) may hold as joint tenants. The estate or interest of a company that is dissolved passes to the remaining joint tenant(s). The change is noted on a Torrens title by means of a Request form 11R (PDF 131.0 KB) or Notice of Death form 01ND (PDF 130.0 KB), accompanied by a certificate of dissolution of the company from the Australian Securities and Investment Commission.

The current lodgment fee must be paid at lodgment (see schedule of fees).

Tenancy in Common

Tenants in common do not possess a right of survivorship and on their death their interest passes according to the terms of their will. If a tenant in common dies intestate (without a will) their estate is distributed according to the Wills, Probate and Administration Act 1898. This is achieved by registration of a  Transmission Application by executors, administrators or trustees form 03AE (PDF 110.5 KB) or Transmission Application by devisee, beneficiary or next of kin form 03AD (PDF 110.5 KB). The current lodgment fee must be paid at lodgment (see schedule of fees).

A tenant in common holds an undivided share in the property and has unity of possession. This means that each co-tenant has an equal right to possession of the whole of the property, but not a right to exclusive possession of any part. A tenant in common may deal with their respective share as they wish and this will not affect the tenancy of the other co-tenants.

It is not necessary for tenants in common to have a unity of interest, they can therefore hold unequal shares. For this reason the shares of tenants in common must always be shown. Shares may be shown:

  • as fractions, eg 2/5 and 3/5 or
  • by decimal point, eg 0.75 and 0.25 or
  • as percentages, eg 60% and 40%.

Note  The fractions and decimal point must add up to 1; the percentages must add up to 100; the fractions must have a common denominator, eg 3/6, 2/6 and 1/6 not 1/2, 1/3 and 1/6.

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