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Property Settlement - Protect your Interest in Real Estate from a Co-Owner – Early Action may Protect your Interest and Protect your Case

12/10/2020

In Australia there can be possibly more than one owner of a single parcel of land, a house or an apartment. The Registered Proprietors are the recorded owners.  Sometimes the registered owner can be a trustee of a Trust of which there are beneficiaries.

If there are two (2) or more Registered Proprietors those persons are co-owners of the land house or apartment.  The rights between co-owners are not always the same. There are two ways in which co-owners can hold the land and the outcomes if one co-owner dies are very different and of great significance in Family Law.

Joint Tenancy

If co-owners (and there can be more than 2) hold the property as joint tenants then the doctrine of survivorship applies.  The doctrine of survivorship provides that the surviving joint tenant(s) takes the whole of the interest of the other deceased joint tenant in the property.  The legal consequence of this doctrine is that upon death the joint tenant no longer has an interest in the property and his/her interest does not form part of the deceased’s estate and is not available for the distribution of assets pursuant to his Will or on intestacy if the deceased died without leaving a Will. 

Often in Australia Husbands and Wives and de facto partners hold property as joint tenants. 

Tenancy in Common

A tenancy in common is where there are co-owners who have interests in real estate but they have a particular and identified share in the real estate.  They may hold as tenants in common in equal shares or tenants in common as to different percentages.

Upon the death of one of the co-owners in a tenancy in common the deceased’s interest in the property will pass according to the laws of intestacy or in accordance with their Will.  If for example, you were to enter into a co-ownership with a sibling or business partner it would be more likely than not that there would be a tenancy in common and not a joint tenancy and each co-owner holds their share in the property available to be distributed in accordance with their Will or in accordance with the laws of intestacy.

The law provides a method for changing or converting a “joint tenancy” to a “tenancy in common” and the conversion will change the tenancy to a tenancy in common in equal shares.  The Land and Property Information Office (the Registrar General) provides the service whereby the joint tenancy is severed and the holding becomes a tenancy in common.  This can be done unilaterally by any person holding a share of land as joint tenant.  Often where a husband and wife (or de factor partners) hold land as joint tenants if the husband and wife separate and one or either party wishes to preserve his or her interest in the property for their estate, that person will make an application to change the ownership of the land (or property) from joint tenants to tenants in common in equal shares upon the breakdown of the marriage or de facto relationship before and pending the resolution of the property division.

In event of an untimely death if the joint tenancy persisted the property result in the family law proceedings will be different if the significant asset of the pool of property has been removed by operation of the doctrine of survivorship i.e. the survivor takes the whole.

Our experienced Family Law Solicitors can assist you and alleviate any concerns or queries you may have regarding the tenancy that you currently hold in relation to your home or an investment property/ties and how it could impact a proposed or potential financial/property settlement.  Seek timely advice to protect your assets and contact Richard Watson Senior Family Lawyer or his Personal Assistant Shereen Da Gloria to discuss your concerns.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 9221 6011.

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