Moving out into a new place is an exciting process. Just as you have to deal with moving furniture and looking for cheap rent, then comes the legal questions. As an owner of a property, you have to decide whether to be tenants in common or joint tenants.

In this article, we’ll explain what tenants in common are and the advantages of this arrangement.

Tenants in common

As tenants in common, the ownership of a property is divided up between the parties. The parties can decide whether they want to split the ownership evenly or unevenly. When you are a common tenant you can sell and transfer your ownership as you want. This means you can do what you want with your share, such as selling it to a third party. However, as part of tenants in common, no one has exclusive possession of the property. Furthermore, there is no right of survivorship. This means in a joint tenants scenario when there is a death the interest is split among the remaining parties. However, for tenants in common, the death causes the ownership to become an inheritance. In the case that the co-tenant dies without a will then their interest is distributed per the Wills, Probate and Administration Act 1898 (NSW).

Disputes

Disputes are controlled by NCAT. The disputes that NCAT covers ranges from unpaid rent, repairs, breaches of agreements and the termination of tenancy agreements. As a co-tenant, you can sell your interest to another party. This prevents complications from joint tenants where they don’t have the power to individually sell their interest. There are other services like the Tenants Advice and Advocacy Service.  Fair trading also has a free service which should be used before NCAT. Although, in some cases, you would proceed straight to NCAT if there is a contract breach, termination issue or serious damage for example.

Lease

Regardless of whether you choose to be joint tenants or not there are a few things you should inspect in your lease agreement. This includes regular things like when you need to pay rent, how often and an accurate location and description of the premises. Terms to check are your rights and obligations around repairs and maintenance. Likewise, whether you have the power to provide alterations or changes to the structure. Finally, you should check there are no unfair or illegal terms included in the lease.

Conclusion

Choosing which tenancy structure you purchase a property through requires consideration of what you need and are looking for. Hence, if survivorship is an important issue then you may find you want the interest to be transferred to the other tenant as joint tenants.

Have more questions? Contact a LawPath consultant on 1800 529 728 to learn more about customising legal documents and obtaining a fixed-fee quote from Australia’s largest legal marketplace.

Justin Pasqualino

Justin is a legal intern at LawPath as part of the content team. He is currently studying a Bachelor of Laws and a Bachelor of Economics at UTS.