Joint Tenants vs Tenants in Common in NSW: What Is the Difference?
In plain English: When you buy property with another person in NSW, you choose how to hold title. Joint tenants hold equal shares with a survivorship right: your share passes automatically to the surviving owner when you die, not through your will. Tenants in common hold specified shares (which can be unequal) with no survivorship right: your share goes through your will or intestacy. The choice has major consequences for estate planning and is worth understanding before you sign.
General information only, not legal advice. The rules on co-ownership and estate planning are complex and depend on your personal circumstances. Seek independent legal advice from a qualified solicitor or conveyancer before deciding how to hold title.
Which situation are you in? Five common NSW buyer scenarios
The right form of co-ownership depends on your situation. Here are five common scenarios and the option most buyers in each scenario choose. These are generalisations; your solicitor can advise based on your specific circumstances.
| Situation | Typical choice | Why |
|---|---|---|
| Married couple buying a family home, no children from prior relationships | Joint tenants | On death, the property passes automatically to the surviving spouse without probate or duty. Simple, clean, no estate administration needed for the property. |
| De facto couple, one partner contributed a larger deposit | Tenants in common (unequal shares) | Allows the property to reflect each party's actual financial contribution (e.g. 65/35). If the relationship ends, each person has a clearly defined share. |
| Two friends buying an investment property together | Tenants in common | Each investor wants to control what happens to their share, including leaving it to their own family, not automatically to their co-investor. Also allows unequal shares if contributions differ. |
| Couple where one partner has children from a prior relationship | Tenants in common | Each partner can leave their share to their own children under their will, rather than having it pass automatically to the surviving partner via survivorship. |
| Parent helping an adult child buy a home (equity contribution) | Tenants in common | The parent's financial contribution can be documented as a defined share. When the child later buys out that share, the ownership split is clear and legally recorded. |
These scenarios are indicative only. Seek independent legal advice before deciding how to hold title. Source: general conveyancing practice in NSW.
How joint tenants and tenants in common compare
NSW does not have a single default form of co-ownership. When two or more people buy property together, they must choose one of two forms:
- Joint tenancy (also written as "joint tenants")
- Tenancy in common (also written as "tenants in common")
| Feature | Joint tenants | Tenants in common |
|---|---|---|
| Share size | Equal shares only (e.g. 50/50 for two owners) | Shares can be unequal (e.g. 70/30, 60/40) |
| Right of survivorship | Yes: when one owner dies, their share passes automatically to surviving owners | No: each owner's share forms part of their estate and follows their will or intestacy |
| Can leave share in will | No: will is overridden by survivorship | Yes: share passes to beneficiaries under the will |
| Stamp duty on death | Exempt in NSW (survivorship, not a dutiable transfer) | May trigger duty depending on circumstances |
| Can sell share independently | Possible but complex (requires severance first) | Yes: each owner can sell or mortgage their share |
| Probate required on death | No (for the deceased's share) | Yes (the deceased's share must be administered through the estate) |
Source: Conveyancing Act 1919 (NSW); Duties Act 1997 (NSW). This table is a general summary. Seek legal advice for your specific circumstances.
What does it mean for your will?
The choice between joint tenancy and tenancy in common has direct consequences for whether your property is covered by your will.
If you are a joint tenant: your share in the property does NOT pass under your will. Even if your will names a beneficiary for your property share, the right of survivorship overrides it. The surviving co-owner receives your share automatically. Your will cannot change this unless the joint tenancy is severed before your death.
If you are a tenant in common: your share in the property does pass under your will. You can leave your share to any person or entity you choose. If you die without a will (intestate), your share passes under the intestacy rules in the Succession Act 2006 (NSW), which prioritises spouses and children.
This distinction matters most in blended families or where co-owners have different estate planning goals. A couple who hold property as joint tenants but have children from prior relationships may find the survivorship rule produces an outcome neither intended; many such couples choose tenancy in common with a mutual will arrangement.
Practical step: When you buy property with another person, tell your solicitor how you hold title AND update your will to reflect the new ownership structure. Many people update their will when they buy property but forget to check whether joint tenancy overrides their intended bequest.
Joint tenancy: how it works
Joint tenancy in NSW has four essential features under common law (often called the "four unities"): unity of possession, unity of title, unity of time, and unity of interest. In practical terms, this means:
- All joint tenants hold the entire property together, not separate parts of it.
- All joint tenants received their title at the same time, from the same document.
- All joint tenants hold equal shares, regardless of who contributed more money to the purchase.
- When one joint tenant dies, their interest in the property passes automatically to the surviving joint tenants by operation of law. This is the right of survivorship.
The right of survivorship means that a deceased joint tenant's share does NOT form part of their estate and is NOT distributed under their will. Even if their will says "I leave my share of the family home to my children", that instruction is overridden by the survivorship rule. The surviving joint tenant receives the full property.
Who typically chooses joint tenancy?
- Married couples or de facto partners who want the family home to pass automatically to the surviving spouse.
- People who want to avoid the property going through the estate (and its associated costs, delays, and potential disputes).
- Purchasers who contribute equally to the purchase and want simplicity.
Tenancy in common: how it works
Tenants in common each hold a distinct, specified share in the property. Unlike joint tenancy:
- Shares can be unequal. Two people might hold 70% and 30% respectively, reflecting different financial contributions to the purchase.
- Each owner's share can be left to specific beneficiaries under their will.
- Each owner's share can (in principle) be mortgaged, sold, or transferred independently, though in practice a co-owner's mortgage or sale of their share alone is unusual and complex.
- On death, the deceased owner's share forms part of their estate and must go through the estate administration process.
Under section 26 of the Conveyancing Act 1919 (NSW), a transfer of property to two or more people is presumed to create a tenancy in common (not joint tenancy) unless the transfer document expressly creates a joint tenancy. In practice, buyers' conveyancers or solicitors confirm the intended holding in the contract documentation.
Who typically chooses tenancy in common?
- Investment property co-owners who want to hold in proportion to their financial contribution (e.g. 60/40 reflecting different deposits).
- Business partners purchasing commercial property together.
- People with children from prior relationships who want their share to pass to their own children rather than to a surviving co-owner.
- People receiving family loans or equity contributions that create a different effective ownership split.
Can you change from joint tenants to tenants in common?
Yes. Converting a joint tenancy to a tenancy in common is called severance. In NSW, severance can be effected by:
- One co-owner transferring their interest to themselves (a self-transfer by deed), which destroys the unity of title required for joint tenancy.
- Mutual agreement between all co-owners.
- Other acts that are inconsistent with the continuation of the joint tenancy (depending on the circumstances).
Severance can be done unilaterally by one co-owner without the other's consent, which can sometimes create conflict. After severance, the property is held as tenants in common in equal shares (unless a different split is agreed). Once severed, a joint tenancy cannot be restored without creating a new joint tenancy by fresh transfer.
Tenants in common cannot convert to joint tenancy unilaterally. A new joint tenancy requires all co-owners to transfer the property simultaneously to themselves as joint tenants.
Estate planning implications of severance: If a couple holds property as joint tenants and one severs without the other's knowledge, the surviving partner no longer inherits automatically. This has been the subject of litigation in NSW. If you are considering severance, seek legal advice first.
Transfer duty on co-ownership and death
Under the Duties Act 1997 (NSW), the passing of a deceased joint tenant's interest to the surviving joint tenant by survivorship is exempt from transfer duty. The surviving owner files a Notice of Death at NSW Land Registry Services, and duty is not assessed.
By contrast, if property held as tenants in common passes to a beneficiary on death, duty may be assessed depending on the relationship. Transfers to a deceased person's spouse or de facto partner are generally exempt. Transfers to adult children or other relatives may be dutiable in some circumstances. Revenue NSW administers these exemptions.
Source: Revenue NSW, Transfer Duty; Duties Act 1997 (NSW), Schedule 1 (exemptions).
What happens if co-owners disagree about selling?
Both joint tenants and tenants in common face the same challenge if one owner wants to sell and the other does not: neither can force a sale without legal action. Options include:
- Negotiated buyout: one co-owner buys the other's share at an agreed price. This is the most common resolution.
- Agreed sale: both co-owners agree to sell the whole property and divide the proceeds according to their respective shares.
- Court order under s66G of the Conveyancing Act 1919 (NSW): either co-owner can apply to the NSW Supreme Court for an order that the property be sold or partitioned. Courts generally order a sale unless partition is practical. Legal costs make this a last resort.
This risk is worth discussing before purchase: how will you exit the co-ownership arrangement if your circumstances change? Having a co-ownership agreement drafted by a solicitor at the outset can help define exit mechanisms and avoid future disputes.
Frequently asked questions
What is the difference between joint tenants and tenants in common in NSW?
Joint tenants hold equal shares with a right of survivorship: the deceased's share passes automatically to surviving owners without going through the will. Tenants in common hold specified shares (which can be unequal) without survivorship: the deceased's share passes under their will or intestacy rules. See the comparison table above for the full breakdown by feature.
Which is better: joint tenants or tenants in common?
There is no universally better option. Joint tenancy suits couples who want automatic inheritance on death with no probate on the property share. Tenants in common suits people who want unequal shares, want to leave their share to specific beneficiaries, or are buying as investors rather than as a couple. Seek legal advice based on your circumstances, as the choice has lasting estate planning consequences.
Can you change from joint tenants to tenants in common in NSW?
Yes. The process is called severance. One co-owner can sever a joint tenancy by transferring their interest to themselves by deed, converting the holding to tenants in common in equal shares. Severance does not require the other co-owner's consent, but you must notify them and should seek legal advice first, as it removes the right of survivorship. A solicitor or conveyancer registers the change at NSW Land Registry Services.
Do I pay stamp duty if my co-owner dies and the property passes to me as joint tenant?
No. Under the Duties Act 1997 (NSW), transfer of a deceased joint tenant's interest by survivorship is exempt from transfer duty. The surviving co-owner files a Notice of Death with NSW Land Registry Services. No duty is assessed on this transfer.
What happens if one joint tenant wants to sell but the other does not?
The same rules apply to both joint tenants and tenants in common: neither can force a sale without a court order. One option is an application under s66G of the Conveyancing Act 1919 (NSW) for an order of sale or partition. This is expensive and slow; agreeing a co-ownership agreement before purchase is the better approach.
Can tenants in common hold unequal shares?
Yes. Unlike joint tenancy (which requires equal shares), tenants in common can hold any proportion: for example 70/30, 60/40, or 80/20. The shares are specified in the transfer document and registered on title at NSW Land Registry Services. Unequal shares are common when buyers contribute different deposit amounts, when a parent provides equity assistance, or when investors want the ownership split to reflect their respective financial contributions.
How do you change from joint tenants to tenants in common in NSW?
One co-owner executes a Deed of Severance, transferring their interest to themselves. This destroys the unity of title required for joint tenancy and results in both parties holding the property as tenants in common in equal shares. Severance can be done unilaterally (without the other co-owner's consent), but you must notify your co-owner and seek legal advice first, since it removes the right of survivorship. Once severed, the joint tenancy cannot be restored without a fresh transfer signed by all co-owners.
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Conveyancing Explained provides general information about property transactions in Australia. It is not legal advice and does not create a client relationship. For advice on your situation, engage a licensed conveyancer, settlement agent, or property solicitor in your state or territory.