The Difference Between Joint Tenants vs Tenants in Common

The Difference Between Joint Tenants vs Tenants in Common

When two or more people buy property together in Queensland, one of the first decisions they’ll need to make is how they want to hold the title. The two options are joint tenants and tenants in common, and while the names sound similar, the legal and practical differences between them are significant.

This is a decision that affects what happens to the property if one owner passes away, how each person’s share can be dealt with, and how the ownership ties into broader estate planning. It’s worth understanding both options before you sign a contract.

A Short Summary

• Joint tenants own the property equally, with a right of survivorship that overrides any will
• Tenants in common can hold different shares and leave their portion to whoever they choose
• The right ownership structure depends on your relationship, financial contributions, and estate planning goals
• You can change from one structure to the other, though there may be registration fees and duty implications
• If you don’t specify a structure in the contract, Queensland law defaults to joint tenancy

What are Joint Tenants?

Joint tenancy is the most common ownership structure for couples buying a home together. Under this arrangement, all owners hold the property equally as a single, undivided interest, meaning there are no individual shares. Each person owns the whole property together with the other.

The defining feature of joint tenancy is the right of survivorship. If one joint tenant dies, their interest in the property automatically passes to the surviving owner. This happens by operation of law and overrides whatever the deceased person’s will says (and the sole owner does not need to go through probate). This is one of the reasons joint tenancy is popular among married and de facto couples, as it’s a straightforward process that ensures the surviving partner retains the home. 

However, because joint tenants own the property equally, no individual owner can sell or mortgage their “share” independently. All owners need to agree on any dealings with the property. If there’s a disagreement and one party wants to sell while the other doesn’t, it may require a court application under the Property Law Act 1974 (QLD) to resolve.

What are Tenants in Common?

Tenants in common is a more flexible form of ownership. Each owner holds a distinct, defined share of the property, and those shares don’t have to be equal. One person might own 60% while the other owns 40%, or any other split the parties agree on. Equal shares (50/50) are also perfectly fine.

The key difference from joint tenancy is that there’s no right of survivorship. When a tenant in common dies, their share doesn’t automatically pass to the other owner. Instead, it forms part of their estate and is distributed according to their will or, if they don’t have one, Queensland’s intestacy rules.

This structure gives each owner more independence. A tenant in common can sell, transfer, or mortgage their share without needing the other owner’s consent (though practical considerations and any mortgage arrangements may limit this). It also means each owner has full control over who inherits their portion of the property.

Tenants in common is often the preferred structure for friends or family members buying together, business partners purchasing an investment property, or any situation where the co-owners contribute different amounts to the purchase price and want their ownership shares to reflect those contributions.

Key Differences Between Joint Tenants vs Tenants in Common

The distinction between joint tenants vs tenants in common comes down to a few core issues. 

With joint tenancy, ownership is always equal, survivorship applies automatically, all owners must act together on any sale or dealing, and the property bypasses the will entirely. With tenants in common, shares can be unequal, each owner’s share passes through their estate, owners can deal with their share independently, and each person decides who inherits their portion.

Your buyer’s conveyancer will ask you to nominate which structure you want before the transfer documents are prepared. It’s a question that comes up during every purchase involving more than one buyer, and it’s worth thinking about carefully rather than just ticking a box.

Which Option is Right for You?

There’s no single answer. The right structure depends on your circumstances.

Joint tenancy tends to suit couples in stable relationships who want the simplicity of automatic survivorship and don’t need to split ownership unevenly. It’s a clean arrangement that keeps things simple if one partner passes away.

Tenants in common tend to suit co-owners who are contributing unequal amounts, want their share to go to specific beneficiaries (such as children from a previous relationship), or simply want more control over what happens to their share of the property. A buyer’s solicitor can help you weigh up the estate planning implications alongside your financial situation.

If you’re buying with a partner and you each have children from prior relationships, for example, tenants in common might be the better choice. It ensures your share of the property can be left to your children rather than passing automatically to your partner.

Can You Change the Ownership Structure Later?

Yes. Under section 59 of the Land Title Act 1994 (Qld), a joint tenant can unilaterally sever the joint tenancy by registering a transfer with Titles Queensland. This converts the ownership from joint tenancy to tenants in common. The severing party doesn’t need the other owner’s consent, although they do need to provide notice.

Going from tenants in common to joint tenancy is also possible, but it requires agreement from all parties.

It’s worth knowing that if you change from joint tenants to tenants in common in equal shares (or vice versa), the transfer is generally exempt from duty under section 143 of the Duties Act 2001 (Qld), provided the value of each owner’s interest stays the same. If the change involves a shift in ownership proportions, duty may apply.

A solicitor in Cairns can walk you through the process and any costs involved before you commit to a change.

Why this Matters During Conveyancing 

Choosing to be joint tenants vs tenants in common is part of every property purchase, and it’s something your conveyancer in Cairns will discuss with you before settlement. The ownership structure you choose is recorded on the title and registered with Titles Queensland, so it needs to be right from the start.

If you don’t nominate a structure in the contract, Queensland law will default to joint tenancy. That might be exactly what you want, or it might not. Either way, it shouldn’t be left to chance.

Whether you’re buying your first home as a couple, purchasing an investment property with a friend, or helping a family member get into the market, understanding the differences between these two structures helps you make a decision that aligns with your financial goals and future plans. 

Your seller’s conveyancer or solicitor can also advise on how a property is currently held if you’re on the selling side and need to manage the transfer correctly.

Disclaimer: This blog is intended for informational purposes only and does not constitute legal advice. For guidance tailored to your specific circumstances, please consult a qualified legal representative.