The one question you need to ask before buying property with a partner

One big question that needs to be asked before buying a property with another person is how you’ll be recorded on the title. There are two different types of ownership and both have different effects on your rights and entitlement.

The two different ways in which you can own property are joint tenancy or tenants in common.

Both types of ownership have quite different effects on the rights and entitlements of each of the owners, commonly referred to as the registered proprietors of the property in question.

Tenants in Common

Parties can opt to purchase property as tenants in common. Purchasing property as Tenants in Common means that 2 or more people can choose to own a property with predefined shares. That is, on the Certificate of Title of the particular property, tenants in common will have a percentage of ownership defined on title.

You may consider tenants in common to be the appropriate way of recording ownership when one party has applied more to the purchase price than the other, or one party expects to contribute to the maintenance of the property in a higher portion than the other. You may even be required to record the percentage of ownership as part of a Binding Financial Agreement (or prenuptial agreement) you have entered into.

By defining the share of ownership, any registered proprietor’s share can be left to their beneficiaries in their Will as part of their Estate Planning, as they please.

Joint Tenancy

Joint Tenancy is a very different form of ownership which provides that all joint tenants have equal ownership and interest in the property in question. It also means that a right of survivorship exists whereby when one joint tenant dies that joint tenant is automatically removed from title (upon lodgement of the appropriate forms) with the remaining joint tenant or tenants becoming entitled to the whole of the property. It is important to note that the deceased joint tenant’s share completely bypasses that person’s estate, meaning that it cannot be left to that person’s beneficiaries.

Most commonly, joint tenancy is considered by those in long term relationships, such as defacto relationships, or married couples. The main requirement is that all parties purchasing the property together as joint tenants must be content with the idea that if they were to die, their share would automatically go to the surviving joint tenant.

It is also important to note that generally, when buying a property, you need to specify that you wish for the ownership to be as tenants in common, otherwise, the default position would be for the ownership to be by way of joint tenancy.

After purchasing a property by way of joint tenancy, there are options available to end the joint tenancy, including unilaterally severing the joint tenancy. By choosing to sever a joint tenancy you are electing to define your share of ownership. For example, if one joint tenant was to sever a joint tenancy between two people, each of those owners would then be deemed to own 50% of the property.

Severing a joint tenancy can have several implications, and as such, it is wise to seek legal and financial advice to ensure that this is right for you.

There are substantial differences between a joint tenancy and tenants in common, and it is in your best interest to consider obtaining advice to ensure that you do what is right for you, both now, and in the future. If you require advice on the best ownership structure for you, please call us on 02 8197 0105 to arrange a conference with one of the Streeterlaw experienced Solicitors.

Written by Jamal Bakalian

After studying a double degree in Law and International & Global Studies at Sydney University, Jamal completed her GDLP at the College of Law. She is currently undertaking her Masters of Law (majoring in Commercial Litigation). Jamal has been practicing Law for 5 years. With a passion for resolving disputes, Jamal is a valuable member of the Commercial Litigation team at Streeterlaw.

Call us on 02 8197 0105 to book an appointment with Jamal Bakalian!