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Presumption of tenants in common

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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


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