Like many Queenslanders at one time or another you may embark on the journey of buying property with another person. This may be with a relative, friend, spouse or business partner. In any instance it is important you understand you rights and obligations to the co-ownership arrangement. At common law, an interest in land may be owned by an individual or by two or more persons concurrently.
Section 33(1) of the Property Law Act 1974 (Qld) provides that any property and any interest, whether legal or equitable, in property may be held by two or more persons as joint tenants or tenants in common. Understanding the nature of each tenancy is best achieved by contrasting it with the other type of tenancy.
In the case of joint tenants neither party has a distinct or separate share in the property. Generally, no joint tenant can claim separate ownership of any part of the land nor can they claim a separate share in the property. This type of tenancy is common with spouses who purchase property together and the Right of Survivorship applies. The effect of this is that when another joint tenant dies, their interest in the property is extinguished and the surviving joint tenants hold the property. Chief Justice Latham in Wright v Gibbons (1949) 78 CLR 313 at 323 described the process as follows:
“if one joint tenant dies, his interest is extinguished. He falls out, and the interest of the surviving joint tenants is correspondingly enlarged”.
It is therefore important to consider how property is held when considering your estate planning issues as property which is owned as joint tenants will not pass through your deceased estate unless you are the last survivor.
Before deciding on joint tenancy you may want to consider whether you have both contributed equally towards the acquisition and what each of your intentions are should one of you pass away.
Tenants in common will allow each co-owner a right to a separate share of the interest in the property. This should not be confused with meaning that each co-owner has a separate physical portion of the land. Rather it means that each co-owner has the right to deal with their share of the property as they wish. The interests of the tenants can be apportioned as agreed. Generally, the apportionments are based upon how much each party has contributed towards the acquisition of the property. The main distinction is that there is no Right of Survivorship with tenants in common, making this type more suited to arrangements between friends or business partners. Upon the death of one tenant their share shall pass to their estate.
If a property transfer document does not stipulate how the co-owners are to hold the property, it will be automatically registered as tenants in common in equal shares, being 50/50. This may be detrimental in situations where the property is intended to be held to be in shares of 60/40 or 80/20.
Is it possible to change how the property is held after it has been acquired?
Yes. Any change will need to be properly documented however and for land include registering that change at the titles office. Please note however any changes in the respective shares between the owners will usually attract duty and taxes.
Disputes between co-owners
Disputes between co-owners can and from our experience do regularly occur. In that case each co-owner has various rights in the property. Whilst neither party can sell the property on behalf of the other co-owners without their authority ultimately each owner has the right to apply to the court for the appointment of a trustee to sell the property as a whole.
In the event of a dispute the tenancy of the parties will be relevant.
It may be also worth considering entering into a formal co-ownership agreement which will set out what rights and obligations each of the owners have between themselves for such things as upkeep, renting and selling the property.
We assist in all types of property transaction matters, do not allow yourself or your new endeavour to be put at risk, contact us today!