On 11 October 2021, the Real Property Amendment (Certificates of Title) Act 2021 commenced, which abolished the Certificates of Title (CTs) and the control of the right to deal (CoRD) framework. All existing CTs have been cancelled and CTs will no longer be issued. Existing CTs will not need to be produced, and CoRD holder consent will not be required, for a dealing or plan to be registered. All existing Guidelines subject to this change are currently being reviewed and will be updated to reflect these changes. For further information regarding the abolition of CTs, please see https://www.registrargeneral.nsw.gov.au/property-and-conveyancing/eConveyancing/abolition-of-certificates-of-title

What are the types of tenancies in which a property may be held?

Where two or more persons take an estate or interest in land by means of an application, transfer, mortgage, charge or lease that dealing must state whether the persons are to hold as ‘joint tenants’ or ‘tenants in common’. If they hold as tenants in common the share of each person must be stated. 

Joint tenancy

Joint tenants possess a right of survivorship, that is, the interest of a deceased joint tenant passes to the surviving joint tenant(s). This means that a joint tenant does not have an interest in the land that can be passed to another through a will unless they become a sole owner because the other joint tenant(s) have predeceased them. The noting of the survivor(s) on Torrens title land is achieved by registration of a Notice of Death dealing. Your legal representative must prepare and lodge the Notice of Death on your behalf.

If a registered proprietor is to transfer a share to another person, in order to hold as a joint tenant with that incoming person, that registered proprietor must be stated as both the transferor and as a transferee on the Transfer form 01T to be registered.

The transfer of joint tenant's interest will sever the joint tenancy and the oncoming party will hold as tenant in common with the remaining tenant(s). The tenancy between the other tenants, not involved in the transfer, remains unaltered.

Corporations (a body corporate) may hold as joint tenants. The estate or interest of a company that is dissolved passes to the remaining joint tenant(s). The change is noted on a Torrens title by means of a Request form 11R or Notice of Death , accompanied by a certificate of dissolution of the company from the Australian Securities and Investment Commission. These forms must be prepared and lodged by a lawyer or licensed conveyancer on your behalf. 

Tenancy in Common

Tenants in common do not possess a right of survivorship and on their death their interest passes according to the terms of their will. If a tenant in common dies intestate (without a will) their estate is distributed according to the Probate and Administration Act 1898. This is achieved by instructing a lawyer or licensed conveyancer to prepare and lodge a  Transmission Application by executor, administrator or trustee form 03AE or Transmission Application by a devisee, beneficiary or next of kin form 03AD.

A tenant in common holds an undivided share in the property. This means that each co-tenant has an equal right to possession of the whole of the property and no right to exclusive possession of any part. A tenant in common may deal with their respective share as they wish and this will not affect the tenancy of the other co-tenants.

Tenants in common can hold the land equally or in unequal shares. The shares of tenants in common must always be shown. Shares may only be shown as fractions (e.g. 2/5 and 3/5).

NOTE: The fractions must have a common denominator, e.g. 3/6, 2/6 and 1/6 not 1/2, 1/3 and 1/6.

Publication Date: July 2024