Mine, Yours, or Ours? Joint in Common vs Tenants in Common   

The key difference between a joint tenancy vs tenants in common lies in what happens to each owners share if one of them passes away.  

In a joint tenancy, all owners hold the property together as one legal interest. There are no individual shares. If one joint tenant dies, their interest passes directly to the surviving owner through the right of survivorship. The property does not form part of the deceased’s estate, and any instructions in their will (with respect to the subject property) do not apply.  

A tenancy in common works differently. Each person holds a distinct share of the property, which can be equal or unequal. When one owner dies, their share becomes part of their estate and is distributed according to their will or the rules of intestacy. 

Both ownership types are legally valid and are recorded on the property title at the time of purchase. The structure you choose influences how the property is managed during co-ownership and what happens if someone passes away, wants to sell, or runs into financial trouble. Choosing the right structure from the beginning can help avoid confusion and conflict later on. 

Estate Planning and Inheritance: What Happens After Death? 

In a joint tenancy, the right of survivorship means that the property automatically transfers to the surviving owner (following the registration of a simple form with QLD Tiles). The deceased’s interest does not become part of their estate and cannot be passed on through their will. This can make things easier for a surviving partner but will exclude any children or other intended beneficiaries from receiving an interest in the property.  

A tenancy in common gives each owner the ability to leave their share of the property to whomever they choose via their Will. That share becomes part of their estate and is distributed under their will. If there is no will, the distribution of the property follows the rules of intestacy. 

If you don’t want your share of the property to pass to the other owner, a tenancy in common gives you the ability to direct your share elsewhere. It is important to understand that in such event the surviving owner will thenceforth share the property with the deceased’s heirs. 

Control, Flexibility, and Financial Contributions 

Tenancy in common reflects the reality that not all owners contribute equally or have the same long-term plans. Each owner can hold a defined share of the property, which may reflect their actual financial contribution. For instance, if one person contributes 70 percent of the purchase price, they can be listed as holding a 70 percent share of the property. This arrangement is also useful for tax planning, as rental income and capital gains can be reported in accordance with ownership percentages. Owners can transfer, sell, or mortgage their individual share, although doing so may still require coordination with the other party. 

Joint tenancy, by contrast, assumes equality. Each owner has an equal interest, regardless of how much they contributed. The law typically treats income and tax liability as split evenly. Joint tenants cannot sell or mortgage their share independently without first severing the joint tenancy. 

For those entering a co-ownership with unequal contributions or different financial goals, tenancy in common provides a clearer and more adaptable framework. Whereas a joint tenancy works best when both parties are aligned in purpose.  

Side-by-Side Comparison: Joint Tenancy vs Tenancy in Common 

The following table outlines the most important distinctions between the two ownership structures. This comparison highlights the practical and legal implications of each ownership type.  

The best option depends on your goals, contributions, and the level of independence each party expects to maintain. 

Risk Management and Resolving Disputes 

Both ownership types come with shared responsibilities. If one co-owner fails to meet financial obligations, such as mortgage repayments, rates, or maintenance, the other may have to cover the shortfall to protect the property. 

A tenancy in common carries the risk that a co-owner’s share could be sold, mortgaged, or claimed by creditors. If a co-owner passes away, their share may go to a beneficiary who does not share the same goals, creating tension or difficulty in managing the property. In cases of financial distress, a creditor can force the sale of a tenant in common’s share, or even apply to sell the whole property with court approval. 

A joint tenancy may seem easier to manage, but it can become complicated if one owner runs into financial trouble or personal conflict. If one joint tenant incurs debts, creditors can apply to sever the joint tenancy and claim that owner’s interest. This can disrupt the original intent of automatic survivorship and expose the surviving co-owner to unwanted complications. 

When co-owners cannot agree, for example, one wants to sell the property and the other does not, either party can apply to the court to appoint statutory trustees for sale. This process, permitted under the Property Law Act 1974, allows the property to be sold, with proceeds divided according to each owner’s entitlement. 

These risks are more common than many expect. Without proper planning, they can turn a simple agreement into a protracted and expensive legal problem. A well-drafted co-ownership agreement can help define responsibilities, outline dispute resolution processes, and provide a clear path forward if circumstances change. 

Real-Life Scenarios: How the Choice Plays Out 

Below are examples that show how each ownership structure can lead to very different outcomes. 

A Couple Planning for Each Other 

Anna and Mark, a married couple, buy their home together. They choose to register as joint tenants, ensuring that if one of them passes away, the other will automatically inherit full ownership.  

Relationship Breakdown and Severance 

Tom and Rachel are partners and buy a property as joint tenants. After several years, they separate. Tom wants to make sure his interest in the property goes to his parents if anything happens to him. He severs the joint tenancy and converts his share of the property to a tenancy in common. Now, he can update his will to leave his share to his parents. 

Disagreement Leading to a Forced Sale 

Two friends, Mia and Sophie, purchase a property as tenants in common. Years later, Sophie wants to sell her share, but Mia refuses. Sophie applies to the court for an order to force the sale. The court approves the sale, and the property is sold with the proceeds split according to their recorded shares. 

Making the Right Choice and Why Legal Advice Matters 

Whatever structure you choose, three steps can help protect your interests: 

• Have a valid will in place, particularly when holding property as a tenant in common. 

• Create a co-ownership agreement that outlines what happens if one owner wants to sell, becomes unable to contribute financially, or passes away. 

• Seek legal advice before finalising the purchase. A lawyer can help you understand your options, assess risks, and register the title in a way that reflects your true intentions. 

The sooner you decide on the right structure, the more confidently you can move forward. If you are still unsure which option is right for you, speaking to a solicitor can provide clarity and peace of mind.