Insight · Property
Joint Tenancy vs Tenants in Common
Published 19 July 2026
The two ways to co-own property in Australia — and why the choice matters far more than most co-owners realise.
Joint tenancy and tenancy in common are the two ways two or more people can co-own property in Australia. They look identical on the outside — everyone is on the title — but they have very different legal, estate-planning and tax consequences. Getting the choice wrong is one of the most common (and most expensive) property mistakes we see.
Joint tenancy — the "four unities" and survivorship
Joint tenants together own the whole of the property. No joint tenant owns a defined "share". At common law, joint tenancy requires the "four unities": possession, interest, title and time — each joint tenant must have the same interest, acquired by the same instrument, at the same time, with equal rights of possession.
The critical feature is the right of survivorship (jus accrescendi). When one joint tenant dies, their interest is automatically extinguished and the surviving joint tenant(s) hold the entire property. The interest does not form part of the deceased's estate. It cannot be left to anyone under a will. It simply passes.
Tenants in common — defined shares
Tenants in common each hold a defined, undivided share in the property. Shares can be equal (50/50, 33/33/33) or unequal (60/40, 70/20/10). A tenant in common can:
- Sell or transfer their share.
- Mortgage their share.
- Leave their share to whomever they choose under their will.
On death, the share forms part of the estate and is distributed by the will (or by the intestacy rules). There is no automatic transfer to the other co-owners.
Side-by-side comparison
| Feature | Joint tenancy | Tenants in common |
|---|---|---|
| Shares | No defined shares — whole property together | Defined shares (equal or unequal) |
| On death | Survivorship — passes to co-owner automatically | Forms part of the estate |
| Left in a will | No | Yes |
| Typical users | Spouses, long-term partners | Business partners, unequal contributors, blended families |
| Severance | Can be unilaterally severed | N/A |
Which is right for you?
Joint tenancy is the default for most married and de facto couples buying the family home. It is administratively simple on death — no probate is needed to transfer to the survivor — and it aligns with the couple's usual intention.
Tenants in common is the right choice when:
- Contributions are unequal (one person puts in 70%, the other 30%).
- Co-owners are business partners rather than life partners.
- One or both parties have children from a previous relationship who should inherit their share.
- The parties want the flexibility to leave the share under a will.
- One party wants their share to flow to a family trust.
Severing a joint tenancy
A joint tenancy can be severed, converting it to a tenancy in common in equal shares. In NSW, severance is done by lodging a transfer or a notice under section 97 of the Real Property Act 1900. Severance does not require the other joint tenant's consent — but you must give them written notice. Common triggers include separation, estate planning changes, and disputes between co-owners.
Estate planning implications
Joint tenancy is the most powerful — and most misused — estate-planning instrument in Australia. Adding an adult child to a title as joint tenant to "avoid probate" almost always creates problems: unintended gifts, capital gains tax, family provision claims, exposure to the child's creditors and family law disputes. Talk to a lawyer before restructuring title for estate reasons.
Tax and stamp duty
Changing between joint tenancy and tenants in common, or changing the proportions between tenants in common, is a dutiable transaction in most states — even between spouses, though concessions may apply. CGT can also apply if the property is not the main residence. Get advice before you lodge the transfer.
Practical takeaways
- Do not default to joint tenancy without thinking about survivorship, contributions and estate goals.
- Document unequal contributions in a co-ownership agreement, even between family.
- Review your title, will and superannuation nominations together — treat them as one plan.
- Get advice before severing a joint tenancy or restructuring title.
Where this fits
Co-ownership structuring sits alongside our Business Sales & Acquisitions work (where property is often part of the deal), Shareholder Agreements (buy-sell clauses often mirror survivorship logic), and estate-planning work covered under Advice & Compliance.
Frequently asked questions
What is the difference between joint tenancy and tenants in common?
Joint tenants own the whole property together with a right of survivorship — when one dies, their interest passes automatically to the survivor(s). Tenants in common each hold a defined share (equal or unequal) that forms part of their estate and passes under their will or the intestacy rules.
Which is better — joint tenancy or tenants in common?
Neither is objectively better. Joint tenancy suits spouses and long-term partners who want the survivor to inherit automatically. Tenants in common suits unequal contributions, business partners, blended families, and estate planning where you want to leave your share to someone other than the co-owner.
Can you change from joint tenancy to tenants in common?
Yes. A joint tenancy can be 'severed' unilaterally by lodging a transfer or a notice of severance at the Land Registry. Severance converts the ownership to tenants in common in equal shares. The co-owner's consent is not required for a unilateral severance.
What happens to a tenant in common's share when they die?
The share forms part of the deceased's estate and passes under their will. If there is no will, it passes under the intestacy rules of the relevant state or territory. There is no automatic transfer to the surviving co-owner.
Does a mortgage over a jointly held property affect survivorship?
Not directly. The mortgage stays over the property. On the death of a joint tenant, the surviving joint tenant inherits the property subject to the mortgage. Life insurance is often used to fund the payout.
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