By Tracy Pratt and Nikki Kumar
Land in Queensland can be owned by two or more persons as either ‘joint tenants’ or as ‘tenants in common’.
While entirely a matter for our clients to decide as to how to set up their property ownership, many spouses tend to purchase their home as joint tenants.
If the land is owned through a joint tenancy, if one of the parties passes away the other one will automatically receive the other portion of the property.
However, sometimes joint tenancy is not the best or most suitable option.
For example, if one of the parties, or perhaps their family, has paid the purchase price (or the majority of the purchase price), in the absence of registering a mortgage it may be inappropriate for a joint tenancy to be created.
This is because if the party who contributed most or all the purchase price dies, their share would automatically go to the other party without an obligation to repay the purchase price paid for by the other or their family.
If a couple is separating, both parties need to consider severing the joint tenancy, unless they wish to risk their share of the property automatically transferring to their soon to be ex-spouse upon their death.
Severing of the joint tenancy does not need the other person’s permission and is done by lodging a Transfer signed by you with the Titles office.
Alternatively, the land can be owned as ‘tenants in common’. In this case, each person owns a distinct and stated share of the property - for example 50%, 25% or 1%. The parties can agree what that share may be, although commonly the amount of money that a party has contributed towards the property determines the share.
Having said that, often split ownership agreements, in differing portions, are also made for asset protection reasons and may not reflect the purchase price or mortgage repayment contributions.
In those circumstances it is prudent to seek legal advice as to whether such arrangements, in the form of a loan agreement or as part of any estate plan, need to be made to reflect the true arrangements, as the ownership on the title may not be a true representation of each party’s contributions to the property.
Tracy Pratt and Nikki Kumar, our conveyancing experts at Hillhouse Legal Partners, can help advise you as to how you should hold any property, any issues with changing the current ownership of a property, and any other questions or issues that may arise when considering purchasing or altering ownership of any property.
The information in this blog is intended only to provide a general overview and has not been prepared with a view to any particular situation or set of circumstances. It is not intended to be comprehensive nor does it constitute legal advice. While we attempt to ensure the information is current and accurate we do not guarantee its currency and accuracy. You should seek legal or other professional advice before acting or relying on any of the information in this blog as it may not be appropriate for your individual circumstances.