70317 Chap.7 Co-ownership: Joint Tenants and Tenants in Common
Co-ownership: Joint Tenants and Tenants in Common
Two ways to own together
Joint tenants hold the whole with no separate shares, and on death the survivors take by survivorship. Tenants in common hold distinct shares that pass under a will.
Section 26 of the Conveyancing Act presumes a tenancy in common unless the instrument says otherwise, and on Torrens land people registered as joint tenants are joint tenants under s 100(1) of the Real Property Act.
Severance
A joint tenant can sever by transferring the interest, by a registered transfer to self under s 97, or by agreement or course of dealing. A will cannot sever.
Severing one share leaves the others' joint tenancy intact.
Equity and accounts
Equity presumes a tenancy in common for unequal contributions, business partners and joint lenders. Co-owners may each occupy the whole; occupation rent usually needs exclusion, improvements can earn an allowance, and s 66G lets the court order a sale.
What this chapter covers
- 01
Joint tenancy, tenancy in common and survivorship
- 02
The four unities
- 03
Section 26 presumptions and s 100(1) registration
- 04
Severance by transfer, s 97 and agreement
- 05
Why a will cannot sever
- 06
Equity's presumptions for unequal contributions
- 07
Occupation rent, improvements and s 66G
Worked example · free
Tracking shares as a joint tenancy is severed and owners die
- 1Ada, Ben and Cy start as registered joint tenants with nominal 1/3 shares (s 100(1)).
- 1Cy's registered transfer severs his share only: Dot holds 1/3 as tenant in common; Ada and Ben hold 2/3 jointly.
- 1On Ada's death survivorship applies, so her will passes nothing from the unit; Ben takes the 2/3.
- 1Ben, the only one left of the joint group, now holds 2/3 as tenant in common with Dot's 1/3.
Key terms
- Right Of Survivorship
- The rule by which surviving joint tenants take the interest of a joint tenant who dies.
- Severance
- The conversion of a joint tenant's interest into a share held as tenant in common.
- Four Unities
- Possession, interest, title and time, all of which a joint tenancy requires.
- Occupation Rent
- A payment a co-owner may claim from another who has excluded them from the property.
Co-ownership: Joint Tenants and Tenants in Common FAQ
What happens to a joint tenant's share when they die?
It does not pass under their will. The right of survivorship means the deceased's interest simply ends and the surviving joint tenants continue to hold the whole. The Exercise 3 feedback warns not to describe this as a transfer, and to give each survivor's fraction once only one of the joint group remains.
How is a joint tenancy severed?
A joint tenant can sever alone by disposing of their interest, since co-ownership interests are fully alienable, or by a registered transfer to themselves under s 97 of the Real Property Act. Co-owners can also sever by agreement or by a course of dealing, the issue in Wright v Gibbons. A will cannot sever.
Can a co-owner force the sale of shared property?
Yes, in most cases. Section 66G of the Conveyancing Act lets the court appoint trustees for sale or order partition when co-owners cannot agree, and Ryan v Dries shows how difficult such an application is to resist. A co-ownership agreement can settle sale rights and other questions in advance.
When does equity treat joint tenants as tenants in common?
Equity presumes a tenancy in common, whatever the legal title says, where co-owners contributed unequally to the price, where they bought as business partners, and where they lent money together on a mortgage. Each presumption can be rebutted by evidence of a different intention, and Delehunt v Carmody is the key reading on unequal contributions.
Exam move
Practise share-tracking problems by drawing one bar per event and restating every fraction after each step. Learn the authorities the markers expected: Delehunt v Carmody, Wright v Gibbons and Gould v Kemp, plus s 35 for simultaneous deaths.
Then work through the tutorial problems on unequal contributions, partners and joint lenders to fix equity's presumptions, and finish with the accounts questions on rent, improvements and occupation. Read the sample deed between tenants in common from the module and note which questions it settles in advance, such as who pays the mortgage, who may live there and what happens on a sale.
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