Co-ownership refers to the legal relationship shared by two or more people over an interest in property. In Queensland co-owners are registered as either Joint Tenants or Tenants in Common. It’s important to have a basic understanding as each of these principles of ownership when purchasing property with another person, as during the conveyancing process your lawyer will need to specify on the transfer how ownership of the property is to be distributed between each owner.
The most common form of co-ownership of property in Queensland is a joint tenancy. There are four basic principles that underlie a joint tenancy engrained in property law, and without the existence of each of these four the owners will instead own the property as tenants in common.
1. The Unity of Title:
Joint tenants must attain their title through a single transaction, such as through a single transfer or by the same deed. For example, if A and B receive interests in the same property but from two different transactions, such as A inherits from C and B purchases from D, no unity of title will exist.
2. The Unity of Time:
Each joint tenant must take their interest at the same time. For example, a will that determines each child will take their share upon turning 21 excludes the unity of time due to the fact that each child can only take their share upon attaining that age, which assumedly happens progressively rather than all at once, with each child being a different age. The unity of time would exist where a will provided for all children to take ownership simultaneously.
3. The Unity of Possession:
Unity of possession provides that co-owners are equally entitled to possession of the whole property and not separate physical parcels of the same property. This unity is apparent in both a tenancy in common and a joint tenancy.
4. The Unity of Interest:
Each joint tenant must share in the same interest, such as a lease, a fee simple or a life estate. It’s not possible to have unity of interest where joint tenants have separate interests because the nature and duration of their share will be different. For example, A and B will have unity of interest where both share in a fee simple interest. Unity of interest will not arise where A has a life tenancy and B has a fee simple interest. This is because A’s interest will be terminated upon their death and will revert back to the original fee simple holder whereas B who holds their interest in fee simple will have complete and utter ownership which endures past death to determine who will receive the property following their life.
Should any of these be four unities be severed, the joint tenancy will be brought to an end and ownership as tenants in common will exist instead.