Difference between joint tenants and tenants in common

Own your home as joint tenants or tenants in common? What is the difference?

A question we are regularly asked is whether a Certificate of Title for property ( which we call land), should be held by two persons as 'joint tenants' or as 'tenants in common'. Many people don't know the options exist or don't know the differences between the options.

What does "Joint Tenants" mean?

Where a person holds land as a 'joint tenant', it means that they hold an interest in the land jointly with one or more other people.

You cannot leave your share of land held as a joint tenant with another to somebody else in your Will, as the land held as joint tenants is subject to the 'right of survivorship'.  That is, where one of the joint tenants dies, the surviving joint tenant will receive the deceased's joint tenants share. 

For example, Suzie and Craig who are married, own a block of land together as joint tenants.  Craig dies before Suzie, but in his Will Craig has given the block of land to his son Greg.

As Suzie and Craig owned the block of land together as joint tenants, Suzie will become the sole owner of the block of land as she is the survivor.

Greg will not receive the block of land, even though it was written in Craig's Will that he was to receive the block of land.

Holding land with another person as joint tenants means you do not have a separate interest in the land that you can deal with.  For example, you cannot sell the land without the other joint tenant agreeing to that and signing the appropriate paperwork.

What does "Tenants in Common" mean?

Where land is held between two persons as "tenants in common", it is a type of co-ownership of land where each person has their own distinct interest in the same piece of land.  However, you do not have exclusive possession of any part of the land. 

There may be more than two people who own the land as tenants in common, and each may own different proportions of shares in the land.

It is a good way for land to be held if you do not want the other owner of the land to automatically get your share of the land if you die before them.

Going back to the example above, if Craig and Suzie owned the block of land together as tenants in common, and then Craig passed away,  Craig's share of the block of land would be given to his son Greg through Craig's Will.  Then Greg and Suzie would own the block of land together as tenants in common.

Can you change the way you own land from "Joint Tenants" to "Tenants in Common"?

It is possible to sever the tenancy of land held between people as joint tenants, and change it to being held as tenants in common.  Going back to the example above, if Craig and Suzie separated (before Craig died), a family law solicitor would strongly advise Craig or Suzie to sever the tenancy, and change how the block of land is held from joint tenants to tenants in common.  Both Craig and Suzie would then have a separate interest in the land, which they could leave to someone in their Will.

To see whether your land is held as joint tenants or tenants in common, a search of the Certificate of Title for the land will show how it is held.  You can arrange this yourself or have a solicitor do the search for you.  There is a cost involved with either option.

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