“Tenants in Common” and “Joint Tenants” What is The Difference?

23 November, 2020 | Wade Hansen

When you purchase your property with your partner or other co-owners, it is important to consider how you ‘own’ your property and be described on the title to your property.  This affects what happens to your interest in the property should you die.

There are two main types of ownership: joint tenants or tenants in common.

Joint Tenants

A joint tenancy does not involve a defined share of ownership. Once you die, your share will pass to the other owner(s) automatically, by ‘survivorship’. This form of ownership is appropriate for say married couples or if you are a trustee of a trust. Your interest in the property does not form part of your estate – in other words, it will pass to the other owner regardless of what your Will says.

Tenants in Common

If you don’t want your interest in your property to pass automatically to your co-owner when you die, then you would want to be described on the title as a tenant in common. Your interest in the property is dealt with in accordance with your Will. A tenancy in common is used in say business partnerships, when siblings or friends are purchasing property together or for new relationships when you want to keep your share separate from the other co-owner(s). It is particularly useful if you hold a different percentage of the property and want that shown on the title.

In the event that you chose a tenancy in common ownership, it is very important to remember to update your Will and consider a property sharing agreement or a relationship property agreement governing your ownership of the property. A relationship property agreement is particularly relevant if you are in a relationship and want to protect your interest from your partner/co-owner.

You would also want to know what would happen in the event of your co-owner’s death.  Their interest in the property will be included in their estate, and once their estate administration details have been worked out, you will find yourself co-owning the property with someone else entirely.

The ownership structure of your property is sometimes overlooked and obviously can have serious consequences. It is therefore important to have this discussion with your lawyer from the outset whenever you buy your property.

If you have any questions regarding the above, or wish to seek advice regarding buying residential property, please contact the author and Head of our Property Law Team, Wade Hansen by phone on 09 837 6885 or email wade.hansen@smithpartners.co.nz