Joint Tenancy and Tenancy in Common

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Joint Tenancy and Tenancy in Common

Introduction

Property, both real (land and interests in land) and personal (everything else), is often owned by two or more people. The question then becomes whether ownership of property is under a joint tenancy or tenancy in common. It is important that owners of property in which they are not the sole owner, understand the differences between the two types of ownership as they have different legal implications.


Joint Tenancy

Joint tenants own all of the property together. This means that each owner (each joint tenant) owns 100% of the property. This means that all joint tenants are equally entitled to its rights, interests and income. For one joint tenant to make a transaction of the property (such as selling or getting a mortgage on it), it requires the authorisation of all other joint tenants. Property subject to a joint tenancy is also subject to what is known as the "survivorship" principle. This means that if one joint tenant becomes deceased, that property does not form part of that joint tenant's deceased estate meaning that joint tenant cannot distribute to his nominated beneficiaries under a will. Instead the other surviving joint tenants will automatically claim the property by operation of law. Joint Tenancies are commonly used for property transactions between close family members such as a husband and wife, though this may not be appropriate if it involves children of previous relationships. It is also sometimes used when property is purchased on trust of someone else.


The advantages of Joint Tenancy include:

There is an automatic right of survivorship whereby interest transfers to other joint tenants when one tenant deceases;

It potentially avoids lengthy and costly legal proceedings if there are issues regarding probate (administrating a deceased person's estate including enforcing their Will if they have one), as that property is not subject to an owner's Will or deceased estate; and there is great transparency as all joint tenants will be notified of any dealings in regards to that property.

However, the disadvantages of a Joint Tenancy include:

Cannot make any dealings to the property without the consent of all joint tenants;

The deceased tenant loses control over the property and control is passed to the other joint tenants who can make dealings as they wish;

Joint Tenancy gives equal ownership to all its tenants, meaning it does not take into account if one joint tenant contributes more than other joint tenants

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