30 Aug OWNERSHIP OF REAL PROPERTY
OWNERSHIP OF REAL PROPERTY
When more than one person undertakes property ownership, several legal questions arise as to how they are to “hold” the land as the proprietor (Owner) of the land. Which holding or tenancy interest depends on the circumstances of each transaction and fundamentally upon the relationship between the parties who are to be registered as proprietors. In this context the term “tenancy” or “tenant” is used to reflect the proprietary interest that a person or entity has in the title to a property, and does not mean that the property is being rented.
In Queensland multiple owners (including companies, trusts, couples and individuals) may choose to hold one property between them, either as “joint tenants“, as “tenants-in-common“, or a combination of both. For this reason when preparing transfer documentation it is vitally important that the transfer document be correctly worded to ensure that the intended and varied interests of all owners are protected.
A joint tenancy can be regarded as a ‘relationship’ and is generally used in the case of a husband and wife, or between de-facto partners. Joint tenants do not own a singular or individual interest, but rather own the entire property interest together. The ‘principal of survivorship’ applies, where a husband and wife for example, hold a joint tenancy interest in a property. Upon the death of one of them that interest is extinguished and such legal right automatically passes to the surviving joint tenant. In that event the Office of Titles requires that documentation then be completed to register the property in the name of the surviving tenant as sole proprietor.
A joint tenancy holding does not ordinarily form part of the estate of a joint tenant who dies. This is particularly pertinent when making decisions to seek a grant of probate for a Will.
It is important to be aware that the Joint Tenancy holding is not always the most suitable mode of ownership for any husband and wife, or de facto relationship partners.
For instance, in the case of second or later marriages, especially where dependents from earlier relationships are a consideration, a ‘holding’ by way of tenants-in-common may prove to be more suitable. The principle of survivorship does not apply to tenants-in-common and the share of the deceased tenant-in-common passes to the beneficiary by Will and does not automatically pass to the surviving tenant or tenants-in-common.
A tenants-in-common have fixed shares in property which may be in equal or unequal shares. For example four people may be tenants-in-common in equal shares, each having a one-quarter share. Or two people may be tenants-in-common, one tenant having a two-thirds interest and the other a one-third interest. The combinations are flexible and can be used as a reflection of a commercial or other arrangement, or seeking to account for a legal tax advantage.
It is therefore absolutely critical that any purchaser consider fairly at the time of purchase, the type of co-tenancy arrangement which needs to be set up when buying real estate jointly. If you would like to discuss any of the issues raised within this article may we invite you to contact our office on (07) 5655 2206.