Included with LEAP Office

1001 Conveyancing Answers (QLD)

Author: By Lawyers For Lawyers

Highly regarded comprehensive practical commentary on property law with extensive scope and answers to most conveyancing problems.

LEAP Clients:
If you wish to subscribe to this publication, please contact us at

Non-LEAP Clients:
Purchase this Guide from the new ByLawyers website

$475.00 + GST
per year

Presumption of tenants in common

The following preview is an excerpt from this publication's full guide.

Purchase now for access to the commentary and precedents included in this publication.

Presumption of tenants in common

There is a presumption in favour of tenants in common: s 35 Property Law Act. This presumption is confirmed in s 56(2) of the Land Title Act, and the registrar will register co-owners as tenants in common unless a contrary intention is expressed. Consequently, there is no need to describe co-owners on a transfer as tenants in common if that is how they intend to own, as the registrar will register them as such if nothing further is added.

What if words of severance are used?

The most obvious way of establishing a contrary intention is by the use of words in the transfer creating the co-ownership that indicate how ownership is to be divided among the co-owners. Joint tenancy means that there is no division between co-owners, that they are all universally entitled to the whole of the property. Any intention to divide the property means that a joint tenancy cannot exist and that a tenancy in common must therefore exist. Such words are known as ‘words of severance’ as they indicate that ownership is divided up between the co-owners, who are therefore tenants in common. Examples are:

  • to A and B equally;
  • to A and B in equal shares;
  • to A as to one-third and to B as to two-thirds.

Can the presumption of joint tenancy be rebutted by implication?

Even in the absence of words of severance, a court might determine that it was the intention of the parties at the time of creation to establish a tenancy in common. Even though the parties are registered on title as joint tenants, a court may still decide that they should be regarded as tenants in common because of the circumstances surrounding the acquisition. In such circumstances the parties will be legal joint tenants (because they are registered as such), but equitable tenants in common. The court will require the co-owners, and their successors, to hold the property on trust for all co-owners as tenants in common.

Etter v Etter NSW Sup Crt 16/4/92
Delaney v Molloy (1993) NSW ConvR 55-664
Gan v Lee NSW Sup Crt 20/3/92
Xenou v Katsaras [2002] VSC 515

On the other hand a joint tenancy will only arise if it is:

© Copyright By Lawyers For Lawyers, 2010, Sydney. All rights reserved.Last Updated: 06/08/2012

*Preview Only
Smokeball ABN: 37 133 794 117
Smokeball Australia | Smokeball Malaysia
© 2015 Terms of Use
Sydney: Level 8, 207 Kent Street, Sydney NSW 2000
Melbourne: Level 8, 45 William Street, Melbourne VIC 3000
Brisbane: Level 1, 365 Turbot Street, Spring Hill QLD 4000

Contact Us

Your name

Your email

Your phone




Smokeball Terms & Conditions

Smokeball does not invite reliance upon, nor accept responsibility for, the information it provides.

Smokeball makes every effort to provide a high quality service. However, neither Smokeball nor the providers of data on Smokeball, give any guarantees, undertakings or warranties concerning the accuracy, completeness or up-to-date nature of the information provided.

Users should confirm information from another source if it is of sufficient importance for them to do so.

Product Feedback

Found a problem with this product, whether it be spelling, formatting or content, we'd love to hear from you!

First Name

Last Name


Related to:




Review -

Help us ensure that each guide is relevant, current and meets expectations of all users.

Your Details:

First Name:

Last Name:







Start your eBook download here

Your email:


Request an eBook

The eBook for this publication is not ready. You can help set our priorities for eBooks by informing us of your needs below.




You have reached your download limit for this eBook

Download only available with recurring subscriptions

The eBook for this publication is not available for your current access (expires ). You can upgrade to a recurring subscription now for access to eBooks.


Upgrade Now


This Work is a precedent or guide prepared by the Author and is not legal advice. The facts of each case will be different and Users must satisfy themselves that this Work is appropriate for the particular case or circumstances for which they intend to use the Work. Neither the Author nor Smokeball is providing legal advice nor do they warrant that this Work is entirely free of defects or fit for any specific purpose and neither the Author nor Smokeball accept any liability for any errors or omissions in the Work and any loss or damages resulting from or connected with the use of the Work. The Author and Smokeball recommend that Users be familiar with the applicable laws and legal procedures relating to the use of the Work, or otherwise should seek legal advice, before using the Work. Smokeball accepts no liability for the publication of the Work by the Author on the Smokeball System.

Links to Third Party Websites

Smokeball contains links to third party websites which are external to Smokeball. Smokeball makes no warranties and accepts no liability for any links contained within Smokeball to third party internet sites; the content and/or the accuracy, correctness, currency and/or reliability of such content therein; or any consequence of acting upon the contents of any website which is not owned/operated by Smokeball. Smokeball does not endorse the content, or the use, of such websites, material or content linked from or to this website. Users of links provided within Smokeball are responsible for being aware of which organisation is hosting the website they visit. Views or recommendations provided in linked websites do not necessarily reflect those of Smokeball.

Submit your legal or procedural question by completing the form below. You can expect to receive a confidential reply via email usually within 24 hours.


Contact Name

Contact Email

Area of Law


NOTICE: Your question and our answer may be published anonymously through the Mentor Knowledge Base on the By Lawyers For Lawyers website. Questions and answers are used for educational purposes only and any identifying information is removed prior to publication. If you would prefer your question not be published, please advise By Lawyers For Lawyers at

Submit Question
provided by: