In this guide(12 sections)
You're about to buy a home with a partner, a friend or a family member, and the contract or the transfer form is asking a question you didn't expect: joint tenants or tenants in common? Or perhaps you already own a home together, your relationship has ended, and you've suddenly wondered what would happen to your share if something happened to you. The good news: it's a simple choice to make, and it's usually easy to get right when you understand it before settlement. Below is how the two types of ownership work in Victoria, in plain English. You don't have to work it out alone — fill in the enquiry form and Elisa will call you back. The first 30 minutes are free.
This guide is general information, not legal advice for your situation. The right choice depends on who you are buying with and what you want to happen to your share.
At a glance — joint tenants vs tenants in common
| Joint tenants | Tenants in common | |
|---|---|---|
| Shares | Always equal — you each own the whole property together | Can be equal or unequal (for example 70/30), written on the title |
| When an owner dies | The share passes automatically to the surviving owner(s) — survivorship | The share forms part of that owner's estate and passes under their will (or the intestacy rules) |
| Does a will control your share? | No | Yes |
| Typical owners | Married and de facto couples | Friends, relatives, business partners, blended families, unequal contributors |
| Where it's recorded | On the certificate of title and the transfer, under the Transfer of Land Act 1958 (Vic) | Same, with each owner's share stated |
| Changing later | Can be converted to tenants in common ("severance") | Can be converted to joint tenants, but only if all owners agree |
| First consultation | Free, 30 minutes, no obligation | Free, 30 minutes, no obligation |
What is the difference between joint tenants and tenants in common?
Joint tenants own the whole property together with a right of survivorship, while tenants in common each own a separate share that they can leave to whoever they choose. That one difference — what happens to your share when you die — is the heart of it.
As joint tenants, you and the other owner(s) are treated as owning the property as one. You can't point to "your half"; you each hold the whole. For joint tenancy to exist, you must acquire the property at the same time, in the same document, with equal interests and equal right to possession. When one joint tenant dies, the survivor simply takes over — no will, no probate on that property.
As tenants in common, each owner holds a distinct share. The shares don't have to be equal, and each owner can sell, mortgage or leave their share in their will without the others' agreement.
What happens to the property when an owner dies?
When a joint tenant dies, their interest ends and passes automatically to the surviving joint tenant(s) by survivorship, regardless of what the will says; when a tenant in common dies, their share passes under their will or, if there isn't one, under the intestacy rules in the Administration and Probate Act 1958 (Vic).
This is why people are sometimes caught out. A person who owns a home as a joint tenant and writes a will leaving "my share of the house to my children" has usually achieved nothing: the share never becomes part of the estate, because survivorship operates first. If you want your children, a new partner or anyone else to receive your share, you generally need to own as tenants in common — and then have a will that says so.
The reverse can be just as important. Married couples often choose joint tenancy on purpose, so the survivor keeps the home without waiting for an estate to be administered. That is a perfectly sound choice when it matches what both of you want. Our guide on the cost of a will explains how a will fits around the way your property is owned.
Which one should you choose when buying?
You choose how you will hold title before the transfer is lodged, and in Victoria the usual rule of thumb is joint tenants for couples who want the survivor to keep the home, and tenants in common where owners put in different amounts or want their share to go to their own family. There is no single right answer, which is why it's worth a short conversation before you sign.
Tenants in common is often the better fit when:
- You're buying with a friend, sibling or other relative, and each of you wants your share to pass to your own family.
- You're contributing unequal amounts — one of you puts in a larger deposit or will carry more of the loan — and want the title to reflect that.
- You're in a blended family and want to protect the interests of children from a previous relationship.
- You're buying as an investment or with a business partner.
Joint tenants is often the better fit when you're a couple who contribute broadly equally and want the home to pass simply to the survivor.
Unequal shares are no substitute for a written agreement about who pays what. Our conveyancing for buyers guide covers the rest of the purchase process, and on our conveyancing page you can see how Elisa handles the contract, the searches and the transfer.
The first 30 minutes are free, with no obligation. Book a free consultation → · or speak to Eliana, our assistant, any time on 03 4328 5084 — she'll get your matter to Elisa quickly.
Can you change from joint tenants to tenants in common?
Yes — a joint tenancy can be ended by "severance", which converts it to a tenancy in common, and any joint tenant can do it without the other's agreement. Severance is the step that stops survivorship from applying.
In practice, severing a joint tenancy over land with a registered title usually means signing and lodging the right dealing with Land Use Victoria so that the register records you as tenants in common in specified shares. Severance can also happen in other ways — for example, if one joint tenant sells or mortgages their interest, or becomes bankrupt — and those are not always obvious from the title. Whether duty or other costs apply to a change can depend on the circumstances, so get advice about the specific transaction first.
Going the other way is different. Converting from tenants in common back to joint tenants requires every owner to agree and a new dealing to be registered.
What should you do about the title after separation?
After separation, joint tenants should consider whether to sever the joint tenancy, because until you do, survivorship can still apply and your will will not reach your share.
Many people leave the title untouched for months or years while they sort out the property settlement, assuming that "everything will be dealt with in the will". It won't be. If one of you dies before the matter is finalised, the survivor can take the whole property by survivorship, even if you were separated and had made a new will leaving everything to your children or a new partner.
Severing the joint tenancy does not change who owns how much of the value, and it does not stop the Family Court dealing with the property. It simply means that, if something happened to you, your share would go to your estate rather than automatically to your former partner. Whether and when to do it is a judgement call that depends on your circumstances and on what is happening in your property settlement, so it's worth talking it through. Our guide to who keeps the family home after separation explains how the home is usually treated.
Does the way you hold title affect a family law property settlement?
No — under section 79 of the Family Law Act 1975 (Cth), and section 90SM for de facto couples, the court looks at the whole picture, so holding title as joint tenants or tenants in common does not decide who gets what. The court can alter the interests of the parties in property regardless of how title is recorded.
What the court considers includes each party's financial and non-financial contributions, the length of the relationship, the future needs of each person and the care of any children. Holding a property as tenants in common in 70/30 shares is relevant evidence of what was intended, but it is not a cap or a guarantee. The same applies to joint tenants: equal ownership on paper doesn't mean an equal outcome.
If the two of you agree how the property should be divided, that agreement can be turned into binding orders. If you're relying on a verbal understanding or the title alone, it's worth getting proper advice rather than guessing.
What if you and a co-owner disagree?
A co-owner who wants out can ask a court to order a sale or division of the property under the Property Law Act 1958 (Vic), although that is usually a last resort. It is far better to agree on an exit plan at the start.
For friends and relatives buying together, a short co-ownership agreement is a sensible step. It can cover who pays the mortgage and rates, what happens if one person can't keep up repayments, how the other can buy them out, and how a sale is triggered.
What goes wrong with co-ownership?
These are general examples of what can go wrong — they are not any particular client's matter:
The will that didn't work. A parent owns a home as joint tenant with their second spouse, and a will leaves "my half" to the children from their first marriage. When the parent dies, the spouse takes the whole property by survivorship and the children receive nothing from it.
The unequal deposit. Two friends buy as joint tenants even though one contributed far more. Years later, they disagree about what each is owed on a sale, and there is nothing in writing.
The forgotten title. A couple separates and files their property settlement away. Neither of them updates the title or their will. One of them dies unexpectedly and the other becomes the sole owner by survivorship.
How we make it easy
How we make it easy: (1) a free, unhurried first call · (2) a straight explanation of which option suits your situation · (3) clear, written fee information before any work begins — our purchase conveyancing is a fixed fee, typically from $660, with searches and disbursements at cost, and Elisa confirms your price in writing after the free 30-minute consultation · (4) the title set up correctly before settlement · (5) one lawyer, Elisa, with you throughout.
Frequently asked questions
What is the main difference between joint tenants and tenants in common?
Joint tenants own the whole property together and the survivor automatically takes the property when one dies. Tenants in common each own a separate share, which can be unequal and which passes under their will.
Can a will override joint tenancy?
No. A joint tenant's interest ends on death and passes by survivorship, so it does not form part of the estate and the will cannot deal with it. To leave your share to someone else, the joint tenancy has to be severed during your lifetime.
Can tenants in common own unequal shares?
Yes. The shares can be any proportion the owners agree, such as 50/50, 60/40 or 90/10, and they are recorded on the title.
Can I change from joint tenants to tenants in common after buying?
Yes. Any joint tenant can sever the joint tenancy, and the change is recorded on the title with Land Use Victoria. Changing back to joint tenants requires every owner to agree.
Should I sever a joint tenancy after separation?
Many people do, because until you sever, survivorship can still apply and a new will won't reach your share. Whether to do it, and when, depends on your circumstances and your property settlement, so get advice first.
Does holding property as tenants in common protect my share in a divorce?
Not by itself. In a family law property settlement the court looks at contributions, needs and the whole relationship, and can adjust interests regardless of how title is held.
Feeling unsure? That's exactly what Elisa is here for
Buying with someone, or untangling a shared home, can raise questions you didn't expect. Elisa will listen, explain where you stand in plain language, and help you decide on a calm, sensible next step — with costs discussed openly from the start.
The first 30 minutes are free.
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Written and reviewed by Elisa Rothschild BA/LLB — Principal Lawyer, Fogarty Oliver Rothschild. Admitted to legal practice in Victoria. Conveyancing and property law in Melbourne since 2012.Last reviewed 30 October 2026.
This guide is general information about Victorian conveyancing, not legal advice for your specific situation. For advice on your matter, book a free 30-minute consultation.