Buyer’s guide · NSW
Joint tenants vs tenants in common in NSW: which should you choose?
Joint tenants vs tenants in common: which should you choose when buying property in NSW? Learn how each works, what happens on death, and how to change later.
Updated October 2026 to reflect current law.
Buying a property in NSW with your partner, a family member or a business partner? One of the first legal choices you make is how you will hold the title: as joint tenants or as tenants in common.
The choice decides who gets your share if you die, whether you can leave it in your will, and how easily the property can be divided later.
This guide explains joint tenants vs tenants in common in plain English, so you can make the right choice before you sign a contract.
Key takeaways
- Joint tenants own the whole property together. If one owner dies, their interest passes automatically to the surviving owner(s). This is called the right of survivorship.
- Tenants in common each own a separate share (equal or unequal). If one owner dies, their share passes under their will, not to the other owner.
- In NSW, if a document gives property to two or more people and does not say how they hold it, the law presumes they are tenants in common in equal shares (section 26 of the Conveyancing Act 1919 (NSW)).
- A joint tenant can usually end (sever) a joint tenancy without the other owner’s consent, by registering a transfer to themselves.
- Most couples choose joint tenancy. Business partners, friends, siblings and blended families often choose tenancy in common.
- Decide before you sign the contract, and get legal and tax advice that fits your situation.
On this page
- What does it mean to own a property as joint tenants?
- What does it mean to own a property as tenants in common?
- Joint tenants vs tenants in common: side-by-side comparison
- Which ownership structure do most buyers choose?
- When do you need to decide between joint tenants and tenants in common?
- Can you change from joint tenants to tenants in common later?
- What happens if you choose the wrong structure?
- Joint tenants vs tenants in common: FAQs
What does it mean to own a property as joint tenants?
Joint tenancy is a type of co-ownership where two or more people own the whole property together. No one owns a particular share or percentage.
The key feature is the right of survivorship. If one joint tenant dies, their interest passes automatically to the surviving joint tenant(s). It does not form part of their estate, and their will does not control it.
Example: John and Stephanie buy a home as joint tenants. John dies. Stephanie becomes the sole owner, even if John’s will left “his half” to his children from a previous relationship.
To update the title, the survivor usually lodges a Notice of Death with NSW Land Registry Services. Probate (a court grant confirming the will) is not normally needed for that property.
| Advantages of joint tenancy | Disadvantages of joint tenancy |
|---|---|
| Simple on death: the property passes straight to the survivor without waiting for probate. | Your will does not apply: you cannot leave your interest to anyone else while the joint tenancy continues. |
| Less estate admin: because the property is not part of your estate, it can reduce the time and cost of administering it. | Always equal: you cannot reflect different contributions to the purchase price. |
| Security for couples: the surviving partner keeps the home. | Can be severed: the other owner can end the joint tenancy without your consent (see below). |
Good to know: survivorship does not make the property completely safe from claims. Under the Succession Act 2006 (NSW), a court hearing a family provision claim can, in some cases, treat property that passed by survivorship as “notional estate” and order provision out of it.
What does it mean to own a property as tenants in common?
Tenancy in common lets two or more people own a property together, with each person holding a distinct share. Shares can be equal (50/50) or unequal (for example 70/30).
There is no right of survivorship. If a tenant in common dies, their share passes under their will (or under intestacy rules if there is no will). Their executor will usually need a grant of probate to deal with it.
| Advantages of tenancy in common | Disadvantages of tenancy in common |
|---|---|
| Flexible shares: shares can match what each person contributed. | Probate usually needed: your share goes through your estate, which can take time and cost money. |
| Estate planning: you can leave your share to whoever you choose in your will. | New co-owner risk: the other owner’s share could end up with someone you did not choose, such as their beneficiary. |
| Independence: you can sell, transfer or mortgage your own share. | Harder to sell a share: few buyers want part of a property, so a co-ownership agreement is wise. |
Joint tenants vs tenants in common: side-by-side comparison
| Issue | Joint tenants | Tenants in common |
|---|---|---|
| Shares | Own the whole together (no separate shares) | Separate shares, equal or unequal |
| If an owner dies | Passes automatically to the survivor(s) | Passes under the owner’s will or intestacy rules |
| Can you leave it in your will? | No, while the joint tenancy continues | Yes |
| Probate for this property | Not usually needed | Usually needed |
| Selling or transferring your interest | Doing so severs the joint tenancy | You can deal with your own share |
| Common for | Couples | Business partners, friends, siblings, blended families, investors |
Whichever you choose, if you borrow together, you are usually each liable for the whole loan, not just your share. Ownership structure does not change what you owe the bank.
Which ownership structure do most buyers choose?
In our experience:
- couples (married or de facto) usually buy as joint tenants, and
- business partners, friends and siblings usually buy as tenants in common.
Couples with children from earlier relationships often choose tenancy in common, so each person can leave their share to their own children. Investors may also choose it for tax or estate planning reasons.
The right structure depends on your circumstances. Speak to your lawyer and your accountant before you decide. If you are thinking about renting the property out later, our guide to converting your home to an investment property is also worth reading.
When do you need to decide between joint tenants and tenants in common?
Ideally, before you sign the contract for sale. The front page of the standard NSW contract asks whether the buyers will hold as joint tenants or tenants in common, and in what shares.
What if you leave it blank? In NSW, the law presumes that two or more people who take property without stating how they hold it are tenants in common in equal shares, not joint tenants (section 26 of the Conveyancing Act 1919 (NSW)). So if you want survivorship, you must say so clearly.
If you change your mind after exchange, tell your lawyer or conveyancer before settlement. They can:
- prepare the transfer (the document registered with NSW Land Registry Services at settlement) to show the correct structure, and
- ask the seller’s lawyer to note the change on the contract.
If you are still at the offer stage, see our guide on how to make an offer for a property, and remember your cooling-off period in NSW gives you a short window to finalise details.
Can you change from joint tenants to tenants in common later?
Yes. Ending a joint tenancy is called severance. After severance, the owners hold as tenants in common, usually in equal shares.
In NSW, a joint tenant can sever on their own by registering a transfer of their interest to themselves (section 97 of the Real Property Act 1900). The other owner’s consent is not needed, although NSW Land Registry Services may notify them. See the Registrar General’s guidelines on severing a joint tenancy.
Owners can also agree to change the structure together, or to change their shares. Changing shares, or moving from tenants in common to joint tenants, involves a transfer and may attract stamp duty or tax. Get advice first.
Separating? A relationship breakdown does not automatically end a joint tenancy. If one of you dies before the property is dealt with, survivorship can still apply. Talk to a lawyer early.
What happens if you choose the wrong structure?
The wrong choice can lead to results nobody intended. For example:
- You buy as joint tenants with a new partner, intending your share to go to your children. On your death, it goes to your partner instead.
- You buy as tenants in common with your spouse. Your share is tied up in probate, and your spouse must wait for the estate to be finalised.
- You contribute 80% of the price but hold as joint tenants or equal tenants in common. Proving your larger contribution later can be hard and costly.
- Co-owners fall out with no written agreement. Any co-owner can apply to the NSW Supreme Court for an order that the property be sold (section 66G of the Conveyancing Act 1919 (NSW)).
Fixing these problems later often costs far more than getting it right at the start.
Joint tenants vs tenants in common: FAQs
Is joint tenancy or tenancy in common better for couples?
Most couples choose joint tenancy so the survivor keeps the home. Tenancy in common may suit couples who contributed unequally or have children from earlier relationships.
What happens if we do not tick a box on the contract?
In NSW, the law presumes you hold as tenants in common in equal shares. If you want joint tenancy, it must be stated clearly.
Can a joint tenant sell their share without the other owner?
A joint tenant does not have a “share” to sell while the joint tenancy exists. But they can sever the joint tenancy without consent and then deal with their share as a tenant in common.
Do I need probate if my joint tenant dies?
Not usually for the jointly owned property. The survivor normally lodges a Notice of Death with NSW Land Registry Services to update the title.
Should we have a co-ownership agreement?
If you are buying as tenants in common with friends, family or business partners, yes. It can cover contributions, expenses, and what happens if someone wants to sell.
Need help buying property in NSW?
Talk to our property team
Property & Conveyancing
Our team can explain your ownership options before you sign, and make sure the contract and transfer reflect what you want. Find out more about our property buying and conveyancing services.
This article is general information only and is not legal advice. It reflects NSW law at the date of publication. Please contact us for advice about your circumstances.
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