Transfer Severing Joint Tenancy in an Interest

This page aims to help you complete an electronic Transfer Severing Joint Tenancy in an Interest dealing form. This form can only be used for a severance of a joint tenancy pursuant to section 97 Real Property Act 1900, i.e. where one or more registered proprietors of an interest (such as a lessee, mortgagee or chargee) hold as joint tenants, but fewer than all the registered proprietors, transfer to themselves in order to hold as tenants in common in shares equivalent to the interest held as joint tenants. 

If the joint tenancy of the registered proprietors of the land is being severed, please use the Transfer Severing Joint Tenancy dealing form.
 
NOTE: the tenancy and shares held between other registered proprietors of the interest not holding as joint tenants with the transferors are not altered by this transfer. 
 
The following should also be considered:

• NSW LRS will issue a severance notice to the other joint tenant(s) if satisfied that the electronic Transfer Severing Joint Tenancy in an Interest dealing form is in order
• the transfer will not proceed to registration until the expiry of 30 calendar days from the date of the severance notice or on receipt of the consent of the other joint tenants identified in the statutory declaration
• if after lodgment of the Transfer Severing Joint Tenancy of an Interest dealing form, one of the joint tenants pass away, NSW LRS will not proceed with its registration (McCoy v Estate of Peter Anthony Caelli (2008) 13 BPR 25,515; [2008] NSWSC 986). The form should be withdrawn.
• a Transfer Severing Joint Tenancy of an Interest dealing form cannot be used where the registered interest holders are recorded as joint tenants in a fiduciary capacity i.e. by means of a Transmission Application or an Application to Record New Registered Proprietor and
• a Minister's consent is not required for a dealing that only changes the tenancy of the registered interest holders.

NOTE: The transferor/transferee (being the registered interest holder who wishes to sever the joint tenancy) must be represented in the workspace for this dealing form. 

Subscriber requirements

Before lodging this document electronically via an Electronic Lodgment Network, a Subscriber must:

1. verify their Client’s identity
2. establish their Client’s right to deal with the land
3. have a properly completed and executed Client Authorisation form and
4. retain evidence that supports the dealing (see Supporting Evidence below).

The Subscriber must also certify that they have taken reasonable steps to ensure that the instrument is correct and compliant with relevant law and any Prescribed Requirement.

For more information on these requirements see:

Residual Documents

Guide to complete

Legislation – see section 97 Real Property Act 1900.

Stamp Duty – not required.

Notice of Sale – not required.

Standard Form of Caveat – a caveat noted on the Register will not prevent the recording of a Transfer Severing Joint Tenancy in an Interest.

Priority Notice noted on the Register - see Priority Notice page for more information.

The following headings refer to the data fields which must be completed in order to lodge an electronic Transfer Severing Joint Tenancy form in an Interest form.
 
Land Title 

Enter the land title reference(s). 

Participant Details

Party Details – Party Name

Select the registered interest holder who wishes to sever the joint tenancy.

Document  

Create Document – Select Other. 

Select Transfer Severing Joint Tenancy in an Interest.

Dealing on Title

Select interest being affected.

Dealing Number

Select the dealing number of the affected interest.

Transferor/Transferee

Select the registered interest holder who wishes to sever the joint tenancy. Less than all registered interest holders must be selected.

Attachment

Attachment Type - Statutory Declaration - Statement for Notice of Severance.

A statutory declaration must be made by the transferor/transferee or, where the transferor/transferee is a corporation, by an authorised officer of the corporation, and must be witnessed by a qualified witness. Where the declaration has been made outside NSW reference to the Oaths Act 1900 must be deleted, the relevant Act must be inserted and the alteration verified.
 
The statutory declaration must state the following:

1. 'I am not subject to any legal constraint which would prevent me severing the joint tenancy'. If the attorney for the transferor/transferee is making the statutory declaration, the statement should be modified to read: 'I [attorneys name], am not aware of any legal constraint which would prevent [transferors/transferees name] severing the joint tenancy'

2. 'The remaining joint tenant(s) is alive'

3. ‘I do not hold the estate in a fiduciary capacity'. If the attorney for the transferor/transferee is making the statutory declaration, the statement should be modified to read: 'The [transferor/transferee] does not hold the estate in a fiduciary capacity' 

4. the full name and residential address of the other joint tenant must be stated. A Post Office Box is not acceptable.  The name must be identical to the name of the other joint tenant as shown on the Torrens Title Register and

5. the transferor/transferee has sent notification of the severance in writing to every registered mortgagee, chargee and covenant chargee recorded on the folio of the Register 

 
NOTE: A discrepancy in a name stated in Item 4 must be accounted for in the statutory declaration, e.g. 'formerly known as ...'. The name will only be changed on the Torrens Title Register by lodgment of a Change of Name form.
 
General statutory declaration requirements can be found here.

Supporting evidence

In addition to evidence supporting the steps taken by the Subscriber to verify the identity of their Client and establish their Client’s right to deal, the Subscriber may be required to retain other evidence to support the dealing.

It is a matter for the Subscriber to be satisfied that they have met the requirements for the dealing. Please refer to the ARNECC Guidance Note 5 for assistance on retaining evidence to support conveyancing transactions in accordance with the NSW Participation Rules.

All NSW legislation can be accessed at www.legislation.nsw.gov.au