Joint tenants and tenants in common are the two ways two or more people can hold land in Western Australia. Joint tenants own the whole together and the survivors take everything if one of them dies. Tenants in common each own a defined share and a deceased owner’s share passes under their Will.
What is a joint tenancy?
A joint tenancy is two or more people holding an equal undivided interest in the whole of the property, with no separate share belonging to any one of them. Nobody owns “half the house”. Each of them owns all of it together with the others.
The consequence that matters on a death is the right of survivorship, which is the rule that on death, a joint tenant’s interest goes to the ones still living. If one joint tenant dies, their interest passes automatically to the surviving joint tenants and it does that no matter what the deceased’s Will says. Property held this way never becomes part of the estate.
What is a tenancy in common?
A tenancy in common is two or more people each holding a defined share of the property and the shares don’t have to be equal. One owner might hold three quarters and the other a quarter and the certificate of title records those shares.
There’s no right of survivorship, so nothing passes automatically to the other owner. If a tenant in common dies, their share forms part of their estate and is distributed under their Will or under the intestacy rules if they left no Will. The surviving co-owner keeps their own share and ends up sharing the property with whoever inherits. See What are the rules of intestacy in Western Australia?
How do the two compare?
The two differ in what each owner holds and in what happens on a death.
| Joint tenants | Tenants in common | |
|---|---|---|
| What each owner holds | the whole of the property together, with no separate share | a defined share, which doesn’t have to be equal |
| What the title records | the names, with no shares shown | the names, with each share shown |
| On a death | the survivors take the whole by survivorship | the deceased owner’s share forms part of the estate |
| Does the Will apply | no | yes, to the deceased owner’s share |
| What is lodged at Landgate | a survivorship application, which takes the deceased owner’s name off the title | a transmission application, which moves the share into the executor’s hands, after the Supreme Court issues a grant |
What the difference does to Harry and Sally
Harry and Sally are retired and own their Perth home together. They have two adult children, Adam and Beth. Harry’s Will leaves everything to Sally and if she doesn’t survive him, equally to Adam and Beth.
If Harry and Sally hold the house as joint tenants, Sally takes the whole house on Harry’s death by survivorship. His Will has no work to do on the house at all. Sally lodges a survivorship application at Landgate to remove Harry’s name from the title.
If they hold it as tenants in common in equal shares, Harry’s half forms part of his estate. It passes under his Will to Sally, but only after his executor obtains a Grant of Probate. The executor then lodges a transmission application at Landgate to move the half share out of Harry’s name and transfers it to Sally. The end result looks the same, but the path there is different. See How to apply for probate in Western Australia.
Now change one fact. Suppose Harry had made an earlier Will leaving his share of the house to Adam and Beth. Held as joint tenants, that gift fails and Sally takes the lot. Held as tenants in common, Sally owns half the house and the children own a quarter each. If the three of them would rather divide it differently, see Can you change the terms of a Will?
How do you find out which one applies?
You find out by ordering a title search from Landgate, because the certificate of title records which of the two co-ownerships was registered. Tenants in common are shown with their shares against their names. Joint tenants are shown without shares. See understanding estate property transfers.
Can a joint tenancy be severed?
Yes. A joint tenancy can be severed while the owners are alive, which converts it into a tenancy in common and ends the right of survivorship. Couples do this on separation and co-owners who’ve contributed unequally do it so that each of them can leave their own share by Will. Severance is registered as a dealing on the title at Landgate.
Frequently asked questions
Can you leave your share of a jointly owned house in your Will?
No, not if you hold it as joint tenants. Your interest passes to the surviving joint tenants automatically and your Will can’t touch it. If you hold as tenants in common, your share does pass under your Will.
Does a joint tenancy avoid the need for probate?
No, not by itself. Probate is the Supreme Court’s approval of a Will, which is what lets the executor collect in the assets and hand them out. A joint tenancy takes the jointly held property out of the estate, but a grant may still be needed for bank accounts or any property the deceased held alone. See do you need a grant.
Do tenants in common have to hold equal shares?
No. The shares can be unequal and they’re recorded on the certificate of title, which makes a tenancy in common the usual choice if the owners contributed different amounts.
Which one is better?
Neither is better in the abstract, because it depends on who you want to end up with the property. Couples in a first marriage commonly hold as joint tenants. Blended families and people who’ve contributed unequally often want a tenancy in common.
How we can help
We order the title search and tell you which co-ownership is registered. We then prepare the Landgate application that follows, whether that’s a survivorship application or a transmission application after a grant. Call us on (08) 9220 4490 or see our property transfers service page.
Related: understanding estate property transfers
This article contains general information about co-ownership of land in Western Australia. It is not legal advice. You should obtain advice about your own circumstances before you act.
