Joint tenants vs tenants in common in Western Australia

When you’re buying property with someone else, one of the first decisions you’ll need to make is how you hold ownership.

It’s not something most people think much about at the time. You’re focused on the purchase price, the settlement date, and the moving boxes. But the way your names appear on the title can have significant consequences down the track, particularly when it comes to what happens if one owner dies.

In Western Australia, the two most common classifications of co-ownership are joint tenancy and tenancy in common. They sound similar, but they operate under very different rules.

What is joint tenancy?

Joint tenancy is where two or more people own a property together as a whole. There are no separate, defined shares. Each owner has an equal interest in the entire property.

The key feature of joint tenancy is the right of survivorship. This is a legal rule that means if one joint tenant dies, their interest automatically passes to the surviving owner (or owners). It doesn’t form part of the deceased’s estate, and it isn’t affected by what their will says, or whether they had one at all.

This makes joint tenancy a common arrangement for married couples and long-term partners who want a straightforward outcome if one of them passes away.

When a joint tenant dies, the surviving owner needs to lodge a Survivorship Application with Landgate to update the title. The required documentation includes:

• An original or certified death certificate
• A completed Application by Survivor (Form A2)
• A statutory declaration (Form B3)
• Verification of identity and supporting ID
• A title search (recommended)

You can check the current Landgate transaction fees before lodging, as these are subject to annual CPI adjustments.

What is tenancy in common?

Tenancy in common is where two or more people each hold a defined share of the property. Those shares can be equal (50/50) or unequal (say, 70/30 or any other agreed split). Each owner can deal with their share independently. They can sell it, mortgage it, or leave it to someone in their will.

Unlike joint tenancy, there is no right of survivorship. When one owner dies, their share does not automatically pass to the other co-owners. Instead, it forms part of their estate and is distributed according to their will.

If there is no will, the deceased owner’s share is dealt with under the intestacy rules in the Administration Act 1903 (WA). These rules can be complicated. The outcome depends on the value of the estate and the type and number of surviving family members. It’s worth knowing that de facto partners also have inheritance rights under this Act, provided they lived with the deceased for at least two years immediately before the death (subject to certain circumstances).

If you’re an executor or administrator dealing with a deceased owner’s share, you may need to apply to the Supreme Court Probate Office for letters of administration or probate. Our team can help you through that process.

Which option suits which situation?

There’s no single right answer. It depends on your circumstances:

Tenancy in common is increasingly popular in WA, particularly as property prices rise and more buyers pool resources with friends or family members.

It’s also common in blended families where each partner wants to protect their children’s inheritance rather than have the whole property pass automatically to a surviving spouse or partner.

Changing from joint tenancy to tenants in common

You can change your ownership structure after purchase. Transfers generally need to be assessed or endorsed for duty by RevenueWA before lodgement, and a Certificate of Duty may be required where the document is duty assessable.

If only one owner wants to change the structure, this is called severing the joint tenancy. It’s a technical process, and the timing matters. The transfer needs to be registered with Landgate before the death of the owner seeking the change.

This is not something to attempt without proper legal advice. Our property law team can walk you through the process.

Caveats and when they’re relevant

A caveat is a notice registered on a certificate of title to protect a person’s claimed interest in land. In the context of co-ownership, a caveat may be relevant during separation or a property settlement dispute, where one party has a valid interest in the property that needs protecting while things are sorted out.

Caveats should only be lodged where there is a genuine legal basis for doing so. Lodging one without reasonable cause can expose you to a compensation claim. Always get legal advice before lodging a caveat.

Getting your ownership structure right from the start

The decision you make at settlement can affect your estate, your family, and your finances for years to come. It’s worth taking the time to understand your options before you sign.

A solid wills and estate plan works hand in hand with how you hold property. If you own as tenants in common, your will needs to clearly address what happens to your share. If you own as joint tenants and that no longer reflects your intentions, it may be time to review your structure.

At Lotus Legal, we help property owners across Perth and regional WA understand their options and make informed decisions. If you’re not sure which ownership structure suits your situation, get in touch with our team for a conversation about what’s right for you.