Joint Tenancy or Tenancy in Common?
Let’s look at the possible scenarios under which joint ownership can be established.
Joint tenancy is the typical arrangement for property co-ownership by a couple, either married or de facto, and gives equal share to both parties. Under this arrangement there is a right of survivorship, meaning that if one party dies, then their share automatically transfers to the surviving owner.
Tenancy in common is more typically the case when two or more people wish to share a property purchase by pooling resources. Under this arrangement there is no right of survivorship, and further, the property is not necessarily owned in equal shares; it can be divided 60:40 or in whatever way suits the parties.
While an ownership agreement is not compulsory, it is considered sound practice, particularly in the case of tenancy in common. The agreement will specify such things as the circumstances and manner in which any future sale might be handled. Where owners find themselves at loggerheads over selling a property, a well-constructed ownership agreement can be of immense help, making sound legal advice on this aspect vital.
First step – talk to each other
Joint ownership may have been a very useful tool in establishing ownership of a property, but circumstances may change over time and for whatever reason, one party wants to sell, while the other(s) do not. The value of a well-constructed ownership agreement will at that time become apparent, but even so, or if there is no such agreement, it may be that differences need to be resolved.
As with many such situations, it is best to try and resolve things by calm and mutually respectful dialogue. It is important to document these conversations for a couple of reasons. First, the very act of writing things down serves to clarify just what has been said. Further, should talks not settle the dispute then it may be that the matter will proceed to court, and having firm evidence of what has been attempted prior to that time will demonstrate to the court the reasonable steps that have already been taken.
If agreement cannot be reached
If the parties cannot reach a mutually acceptable resolution, then the party who wishes to sell may need to take the matter to court. There is provision for this in Section 66G of the NSW Conveyancing Act 1919, and the Supreme Court has only limited reasons for not hearing such an application. Likewise, while the court can refuse to make orders under Section 66, it is an accepted principle that an owner has a right to sell. With all circumstances considered, the court will issue orders for the sale, and will place the property in the hands of a trustee, either suggested by the parties, or appointed by the court.
The trustee will then handle the complete process of the sale as a reasonable person would do, and once completed, will pass the proceeds, net of all disbursements and fees, to the owners, apportioned appropriately.
This pathway comes at some cost, highlighting the preference for a mediated solution. However, should this court solution be required, professional legal advice is certainly called for.
An ounce of prevention
Joint ownership can be a good solution to property ownership issues, and as with any such arrangement, having a properly constructed contract – an ownership agreement – is worthwhile insurance. Timely professional advice is paramount, either to establish an agreement, or in the event that disputes arise.
In the event that you find yourself in need of assistance, please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780.